On April 17, 2024, the EPA signed a final rule to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. The designation allows the EPA to use its CERCLA enforcement authorities to address PFOA and PFOS contamination.

On April 19, 2024, the EPA issued a “PFAS Enforcement Discretion and Settlement Policy” regarding enforcement and settlement considerations that will inform the 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 PFOA and PFOS.

I. Enforcement Discretion

According to the policy, the EPA will focus on “holding accountable those parties that have played a significant role in releasing or exacerbating the spread of PFAS into the environment, such as those who have manufactured PFAS or used PFAS in the manufacturing process, and other industrial parties.”[i]

The EPA does not intend to pursue certain PRPs where equitable factors do not support seeking response actions or costs under CERCLA, including, but not limited to, the following entities:

1. 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.

The EPA may extend enforcement discretion under this policy to additional parties based on equitable factors, even if they do not fall within the above categories. Equitable factors which the EPA will consider its enforcement discretion not to pursue additional entities for PFAS response actions or costs under CERCLA include:

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.

The EPA recognizes that scientific and legal research associated with PFAS continues to evolve rapidly. Therefore, the EPA acknowledged that “the scope of this policy may change to reflect newly emerging science or regulatory requirements or other relevant considerations.”[ii] Such acknowledgments further stress the necessity for constant vigilance of PFAS-connected rulemaking and regulatory compliance obligations.

II. Settlement Policy

To further the goals of the policy, the EPA provided two primary litigation and liability protections.

First, the EPA may protect certain non-settling parties when the EPA enters settlement agreements with major PRPs via a waiver of rights. Under this protection, when the EPA settles with a PRP(s) for a PFAS response actions, the EPA may secure a waiver of rights, providing that the PRP(s) cannot pursue contribution against certain non-settling parties. The waiver is intended to protect parties that the EPA does not intend to pursue from both the costs of litigation and the costs of cleanup. Without a waiver, settling major PRPs could pursue contribution.

Second, the EPA may enter into settlement agreements with parties when factors do not support enforcement against them for PFAS response actions. Such agreements will include protection from third-party contribution claims related to the matters addressed in the settlement. Therefore, non-settling PRPs cannot pursue these settling parties for contribution costs under CERCLA related to the settlement, thus minimizing litigation costs and discouraging third-party litigation.

The aforementioned protections are not the only litigation and liability protections. Parties can also qualify for de minimis or de micromis settlements when their contributions are miniscule. “Ability to pay” settlements are also available to PFAS-related PRPs when payment could result in undue financial hardship for the PRP. In-kind services, including PFAS monitoring activities and implementing institutional controls, can similarly protect against potential contribution claims.

Overall, the EPA’s promulgation of rules and policies surrounding PFAS has been brisk in 2024. The increased attention on PFAS and other emerging contaminants has been compounded by ongoing litigation to address and remediate PFAS contamination. The latest actions by the EPA and the approval of the settlement in the AFFF MDL underline the importance of monitoring and evaluating PFAS-related obligations and litigation risks for various industries. There is an ongoing need to identify the risks and potential costs of potential PFAS liability and implement flexible solutions corresponding to evolving PFAS liability frameworks. The Maron Marvel environmental team continues to examine all developments related to PFAS and other emerging contaminants to provide education updates and offer practical guidance and counsel.

[i] PFAS Enforcement Discretion and Settlement Policy Under CERCLA (epa.gov), https://www.epa.gov/system/files/documents/2024-04/pfas-enforcement-discretion-settlement-policy-cercla.pdf?_hsenc=p2ANqtz-9agz9iV3sOHOL21YibqK9lq16rZM76EovGx2HlbU8k_THTZTkRXErAuvAJr9JEEOlUA7SbgYMAO4ZRgxl3hMtGVKYbwg&_hsmi=303978549

[ii] Id.

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