The American Bar Association (ABA) Section of Environment, Energy, and Resources (SEER) is holding its 31st fall conference October 11-13, 2023, in Washington, D.C. On October 12, 2023, in his remarks at the conference, David Uhlmann, Assistant Administrator for the U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA), stated that EPA will not pursue per- and polyfluoroalkyl substances (PFAS) enforcement actions against farmers who used biosolids, public airports that used aqueous film forming foam (AFFF) for fire suppression, or municipal wastewater facilities so long as they were acting in good faith. 

Background

On September 6, 2022, EPA proposed to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). 87 Fed. Reg. 54415. More information on the proposed rule is available in our August 29, 2022, memorandum. As reported in our April 13, 2023, memorandum, EPA published an advance notice of proposed rulemaking on April 13, 2023, seeking information to assist in the consideration of potential development of future regulations pertaining to PFAS under CERCLA. 88 Fed. Reg. 22399.

On March 14, 2023, EPA held a public listening session to receive individual input related to concerns about potential liability under CERCLA. EPA stated that it would review and consider the input received in drafting a PFAS enforcement discretion and settlement policy to the extent that PFAS cleanup enforcement efforts occur under CERCLA. As reported in our March 17, 2023, memorandum, EPA stated that it intends to focus on manufacturers, federal facilities, and other industrial parties whose actions result in the release of significant amounts of PFAS. EPA does not intend to pursue CERCLA enforcement for PFAS contamination against the following parties:

• Water utilities and publicly owned treatment works (POTW);
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• Publicly owned and/or operated municipal solid waste landfills;
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• Farms that apply biosolids; and
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• Certain airports and fire departments (state, Tribal, or municipal airports and Tribal or local fire departments).