EPA Provides Guidance on CERCLA Enforcement Discretion Policy for Certain PFAS

EPA held two listening sessions recently to announce its intention to draft a formal enforcement discretion policy that would shield certain PFAS (per- and polyfluoroalkyl substances) polluters from enforcement actions brought by the federal government under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or “Superfund” Act.

PFAS, also sometimes called “forever chemicals” because they do not naturally break down in the environment, are used in a number of manufacturing and industrial processes and consumer goods for their anti-stick, water-repellant and heat-resistant qualities. Exposure to high levels of PFAS has been tentatively linked to a number of adverse health effects, making PFAS—which encompass a class of several thousand different chemicals—a prime target for an ongoing federal regulatory push.

If adopted, EPA’s policy will focus federal enforcement efforts under CERCLA on PFAS manufacturers, federal facilities and other regulated entities who presently or historically caused or contributed to significant levels of PFAS contamination in the environment. Although only two PFA substances—perfluorooctanoic acid (PFOA) and perfluoroctane sulfonic acid (PFOS)—have been proposed for regulation under CERCLA to date, EPA possesses the power to target other PFAS compounds when such substances present an imminent and substantial danger to public health or the environment.

EPA announced several categories of regulated entities that it does not intend to pursue under the proposed enforcement policy, including:

• • Publicly owned and operated water utilities
  • Publicly owned and operated municipal solid waste landfills
  • Farmers who apply biosolids to their land
  • State, tribal or municipal airports and fire departments

Notably, privately owned wastewater treatment facilities, water utilities and landfills do not appear to be exempt from EPA’s enforcement priorities. However, EPA also expressed an interest in developing a set of equitable factors to be applied to enforcement decisions on a case-by-case basis, including the following:

• • Whether the regulated entity in question was a passive receiver of PFAS substances that made minor contributions to contamination
  • Whether the regulated entity is a contractor acting in the shoes of a public entity
  • Whether the regulated entity performs a public service

Representatives of several industry groups and municipal utilities were also given the opportunity to speak during the listening sessions. Speakers raised concerns about:

• • The proposed policy’s failure to shield regulated entities from citizen suits and contribution claims
  • The lack of safe harbor provisions for passive PFAS receivers
  • Increased costs associated with transitioning away from PFAS products and new waste management expenses
  • The lack of a brownfields component to encourage private development of PFAS-contaminated properties

Once finalized, EPA’s enforcement discretion policy will provide some measure of guidance for EPA enforcement priorities, although it will not have the full force and effect of a formal rule or regulation.  EPA will retain the power to depart from the policy, and future administrations may choose to follow it or adopt a new policy.

Please contact Alan Harrell, David Topping, Sophie Gray or any member of Phelps’ Environmental team if you have questions or need compliance advice and guidance.