On April 17, 2024, Environmental Protection Agency (EPA) Assistant Administrator for Enforcement and Compliance Assurance, David Uhlmann issued a memo, “PFAS (per- and polyfluoroalkyl substances) Enforcement Discretion and Settlement Policy Under CERCLA” (Comprehensive Environmental Response Compensation and Liability Act).
In the memo, Mr. Uhlmann writes, “EPA is issuing this PFAS Enforcement Discretion and Settlement Policy Under CERCLA regarding enforcement considerations that will inform EPA’s decisions to pursue or not pursue potentially responsible parties (PRPs) for response actions or costs under CERCLA to address the release or threatened release of PFAS.”
Passive Receivers
The memo reinforces previous statements by the EPA that they will not focus on specific passive receivers of PFAS.
“EPA does not intend to pursue otherwise potentially responsible parties where equitable factors do not support seeking response actions or costs under CERCLA, including, but not limited to, the following entities:
(1) Community water systems and publicly owned treatment works (POTWs);
(2) Municipal separate storm sewer systems (MS4s);
(3) Publicly owned/operated municipal solid waste landfills;
(4) Publicly owned airports and local fire departments; and
(5) Farms where biosolids are applied to the land.”
While privately-owned landfills may face CERCLA enforcement for PFAS, publicly owned/operated municipal solid waste landfills may not (image purchased from Shutterstock).
The EPA stated that it will seek to enter settlements with other parties that it believes should contribute to the cleanup costs and seek to require those settling parties to waive their rights to sue the types of entities listed above (Beverage and Diamond).
The memo also provides additional areas of discretion.
“Fairness and Equitable Factors”
“Consistent with EPA’s practice of considering fairness and equitable factors, EPA will exercise its enforcement discretion to not pursue additional entities for PFAS response actions or costs under CERCLA, informed by the totality of the following factors:
(1) Whether the entity is a state, local, or Tribal government, or works on behalf of or conducts a service that otherwise would be performed by a state, local, or Tribal government.
(2) Whether the entity performs a public service role in:
- Providing safe drinking water;
- Handling of municipal solid waste;
- Treating or managing stormwater or wastewater;
- Disposing of, arranging for the disposal of, or reactivating pollution control residuals (e.g., municipal biosolids and activated carbon filters);
- Ensuring beneficial application of products from the wastewater treatment process as a fertilizer substitute or soil conditioner; or
- Performing emergency fire suppression services.
(3) Whether the entity manufactured PFAS or used PFAS as part of an industrial process.
(4) Whether, and to what degree, the entity is actively involved in the use, storage, treatment, transport, or disposal of PFAS.”
PFAS CERCLA Enforcement Discretion Memo: Caveats
The memo outlines the EPA’s intentions. It is a policy not a law or regulation. Below are some caveats to consider:
“To no surprise, the Policy has limits. EPA made clear that it reserves its right to pursue enforcement against any party that may have contributed to PFAS contamination, particularly where EPA finds a potential imminent and substantial endangerment” (Crowell).
“…the Memo notes that even the entities granted enforcement discretion may still be subject to enforcement and cost liabilities if they contribute to or exacerbate the spread of significant quantities of PFAS contamination. This raises a number of questions, such as how much more PFOA- or PFOS-laden biosolids farmers may continue to accept, now that those substances are classified as CERCLA hazardous substances, before they lose the protections afforded under the new policy. Similarly, what obligations do otherwise-protected POTWs have to require that entities discharging PFAS to the POTW manage the levels of PFAS they discharge to the POTW for treatment to ensure the POTW is not ‘contributing to or exacerbating’ the presence of PFAS contamination in landfills to which it sends its spent treatment media or in the biosolids its sends to farms for spreading (Fredrikson)?”
“For many businesses, however, the EPA’s policy will feel like the agency has cut off their hand, only to give them a few fingers back. Indeed, whether a company is considered passive or a major PRP for the release of PFAS into the environment is an issue that will take years – and even decades – before the liability contours under CERCLA and the PFAS Enforcement Discretion Policy come into focus” (Spencer Fane).
The EPA policy aside, environmental groups may decide to pursue legal action against municipal sites or farms that may be impacted by, what are now, CERCLA hazardous substances.
PFAS enforcement under CERCLA will be increasingly complicated, especially as the EPA considers additional PFAS to be listed as CERCLA hazardous substances.
If you need assistance with an environmental issue, contact Jeffrey Bolin, M.S., CHMM, at 248-932-0228, Ext. 125.
Dragun Corporation does not use artificial intelligence in drafting our blogs or any other material.
Alan Hahn drafted this blog. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years. He has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.
Jeffrey Bolin, M.S., reviewed the blog. Jeff is a partner and senior scientist at Dragun Corporation. He is a published author, frequent speaker, and expert witness. His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.
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