On March 14, 2023, the U.S. Environmental Protection Agency (EPA) held the first of two public listening sessions to receive individual input related to concerns about potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). According to EPA’s March 2, 2023, press release, EPA will review and consider the input received in drafting a “CERCLA per- and polyfluoroalkyl substances (PFAS) enforcement discretion and settlement policy to the extent that PFAS cleanup enforcement efforts occur under CERCLA.” EPA will post recordings of the sessions after both sessions have taken place.

Background

As reported in our August 29, 2022, memorandum, EPA has proposed to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), “two of the most widely used per- and polyfluoroalkyl substances (PFAS),” as hazardous substances under CERCLA. The proposal includes the salts and structural isomers of PFOA and PFOS. The rulemaking would require entities to report immediately releases of PFOA and PFOS that meet or exceed the reportable quantity.

March 14, 2023, Webinar

Ken Patterson, Director, Regional Support Division, Office of Site Remediation Enforcement in EPA’s Office of Enforcement and Compliance Assurance (OECA), provided an overview of PFAS, summarized the basic tenets of CERCLA, and discussed EPA’s plan to issue an enforcement discretion and settlement policy. According to Patterson, the rulemaking to designate PFOA and PFOS as CERCLA hazardous substances is underway, and EPA is currently reviewing comments received on the proposed rule.

The webinar focused on the enforcement issues if the proposed rule becomes final. Patterson stated that CERCLA enforcement preserves Superfund Trust Fund resources. If EPA designates PFOA and PFOS as CERCLA hazardous substances, it will have authority to take action against parties responsible for contamination.

According to EPA, its CERCLA PFAS enforcement discretion and settlement policy is aimed at addressing stakeholder concerns and reducing uncertainties by clarifying when EPA intends to use its CERCLA enforcement authorities or its CERCLA enforcement discretion. To the extent that PFAS cleanup enforcement efforts occur under CERCLA, EPA will develop a CERCLA PFAS enforcement discretion and settlement policy. The policy will take into account various factors, such as EPA’s intention to focus enforcement efforts on PFAS manufacturers and other industries whose actions result in the release of significant amounts of PFAS into the environment, and EPA’s intention not to focus on pursuing entities where factors do not support taking an enforcement action.

CERCLA PFAS Enforcement Discretion

EPA intends to focus on manufacturers, federal facilities, and other industrial parties whose actions result in the release of significant amounts of PFAS. EPA may choose not to take CERCLA enforcement action against certain entities. EPA may settle and provide CERCLA contribution protection to some parties. Patterson noted that under CERCLA, a party that resolves its liability with EPA through a settlement is not liable for third-party claims.

EPA does not intend to pursue CERCLA enforcement for PFAS contamination against the following parties:

• Water utilities and publicly owned treatment works (POTW);

• Publicly owned and/or operated municipal solid waste landfills;

• Farms that apply biosolids; and

• Certain airports and fire departments (state, Tribal, or municipal airports and Tribal or local fire departments).

Patterson noted that this enforcement discretion would be limited to CERCLA and would not impact EPA enforcement actions under other statutes. EPA would retain the ability to address situations that present imminent and substantial endangerment. The enforcement discretion policy would be contingent upon the party’s cooperation.

EPA heard oral comments during the webinar, but it did not respond to individual remarks. EPA will hold another listening session on March 23, 2023. Registration is required. To share remarks verbally, participants must pre-register to speak by 5:00 p.m. (EDT) on March 20, 2023. Registration to listen will close on March 22, 2023, at noon (EDT). Written comments related to the listening sessions are due March 31, 2023. These comments are separate from EPA’s rulemaking process and will not be part of the PFOA/PFOS rulemaking docket.

Commentary

Bergeson & Campbell, P.C. (B&C^®) notes the far-reaching implications of EPA’s intention to designate PFOA/PFOS as hazardous substances under CERCLA. While EPA stated that PFOA and PFOS are “two of the most widely used [PFAS],” we question whether this is true. OPPT’s PFOA Stewardship Program in the 2010s essentially eliminated PFOA use. PFOS was also essentially phased out from use. Manufacturers, processors, and users largely switched to non-PFAS substitutes or to other PFAS.

The enforcement discretion discussed during the webinar is consistent with EPA’s past practices of using its discretion (e.g., Policy towards Owners of Residential Property at Superfund Sites). It will, therefore, alleviate the CERCLA liability concerns of the identified entities for which EPA intends to use its discretion for PFOA/PFOS. The list of potentially responsible parties (PRPs) for removal and/or remedial actions, however, will be extensive and will lead to prohibitively expensive response costs. More broadly, we note that EPA stated the following in its proposal to designate PFOA and PFOS as hazardous substances under CERCLA:

In addition to this action, in 2022, the EPA will be developing an advance notice of proposed rulemaking seeking comments and data to assist in the development of potential future regulations pertaining to other PFAS designation as hazardous substances under CERCLA.

We are quite confident that EPA will use its enforcement discretion for specific entities, possibly the same ones identified for PFOA and PFOS, if other PFAS are designated as hazardous substances under CERCLA. This would, however, expand astronomically the universe of PRPs. Further, if EPA does designate other PFAS as hazardous substances under CERCLA, EPA’s recent activities pursuant to the National Defense Authorization Act for Fiscal Year 2020 (NDAA), including adding certain PFAS to the list of substances covered by the Toxics Release Inventory under Section 313 of the Emergency Planning and Community Right-to-Know Act and the data call under the Toxic Substances Control Act (TSCA) and resulting proposed rule under TSCA Section 8(a)(7) for reporting and recordkeeping requirements for PFAS, will provide EPA with extensive information about facilities for targeting and investigating entities for possible liability under CERCLA.

An interesting question about EPA’s enforcement authority may be forthcoming based on its activities under TSCA and its proposed rule to prohibit ongoing uses of chrysotile asbestos, including asbestos diaphragms used in the chlor-alkali industry for producing water treatment chemicals (e.g., chlorine and caustic soda). EPA acknowledged in the proposed rule that:

Both asbestos-containing diaphragm cells and membrane cells use per- and polyfluorinated substances (PFAS) compounds. EPA lacks information to determine whether this proposed regulation would increase usage and associated release of PFAS compounds at chlor-alkali facilities that currently rely on asbestos-containing diaphragms, chlor-alkali facilities that do not currently use asbestos-containing diaphragms that may expand their production as a result of the regulation, upstream facilities that produce membranes, or upstream facilities that produce PFAS fibers used in non-asbestos diaphragms.

EPA discussed in the proposed rule its authority under TSCA Section 6(g) to grant a time-limited exemption for a specific condition of use, such as the chlor-alkali industry, where EPA finds “that compliance with the proposed requirement would significantly disrupt the national economy, national security, or critical infrastructure.”

EPA’s parallel activities on PFAS, its intent on possibly designating additional PFAS as hazardous substances under CERCLA, and the extraordinary breadth of the definition of PFAS as a category, could unintentionally disrupt the availability of diaphragm and membrane cells that contain PFAS, rather than asbestos, as entities move away from these PFAS technologies due to liability concerns under CERCLA. EPA might use its enforcement discretion for entities that manufacture PFAS-containing diaphragms and membranes for use in the chlor-alkali industry. Alternatively, EPA could grant a time-limited exemption for the use of chrysotile asbestos in the chlor-alkali industry that includes a longer time period for the development of non-PFAS technologies.

In closing, EPA’s PFAS enforcement listening session provided relevant information on its intent to use its enforcement discretion against specific entities. The potential cleanup costs for PRPs could, however, be astronomical and lead to record-breaking numbers in terms of the costs and numbers of PRPs. Beyond PFOA and PFOS, entities should consider their potential identification as PRPs if and when EPA expands the universe of PFAS that it designates as hazardous substances under CERCLA. The implications of such an action will extend potential liabilities to new entities and may end up disrupting critical infrastructures throughout the United States and have grave consequences for critical uses of PFAS if companies exit the PFAS market to limit potential future CERCLA liability. Proponents of the elimination of PFAS may regret not having access to many pharmaceuticals, surgical implants, medical devices, electric vehicles, semiconductors, and many other products that rely on various PFAS -- PFAS that share almost no characteristics with PFOA and PFOS other than the presence of a carbon-fluorine bond.