On Friday, April 19, 2024, USEPA announced it will publish a final rule designating PFOS and PFOA as CERCLA hazardous substances (the "PFAS CERCLA Rule"). Separate from the Rule, USEPA is also issuing its "PFAS Enforcement Discretion and Settlement Policy Under CERCLA," which describes how USEPA will determine to pursue or not pursue potentially responsible parties under CERCLA to address the release or threatened release of PFAS.
The Final PFAS CERCLA Rule
The final PFAS CERCLA Rule designates PFOS and PFOA, including their salts and structural isomers, as CERCLA hazardous substances. Designation as a CERCLA hazardous substance means these PFAS will be subject to reporting obligations for releases that meet or exceed reportable quantities. Further, any party potentially responsible for a release of the designated PFAS at a site could be subjected to CERCLA clean up liability.
The final PFAS CERCLA Rule will be effective 60 days after publication in the Federal Register. Read the pre-publication version of the Rule here.
The PFAS Enforcement Discretion and Settlement Policy Under CERCLA
Notably, the final PFAS CERCLA Rule does not provide any industry-specific liability exclusions. Rather, USEPA is separately issuing a PFAS Enforcement Discretion and Settlement Policy Under CERCLA. This Policy applies only to USEPA’s enforcement discretion when requiring action to address releases of PFOS and PFOA under CERCLA. Pursuant to this Policy, USEPA does not intend to pursue otherwise potentially responsible parties “where equitable factors do not support seeking response actions or costs under CERCLA.” Such parties include, but are not limited to:
- Community water systems and publicly owned treatment works (POTWs);
- Municipal separate storm sewer systems (MS4s);
- Publicly owned/operated municipal solid waste landfills;
- Publicly owned airports and local fire departments; and
- Farms where biosolids are applied to the land.
Further, for the above parties, USEPA's Policy indicates that the agency will use CERCLA statutory authorities when appropriate to enter into settlements that provide contribution protection from third party claims for matters addressed in the settlement.
Read the PFAS Enforcement Discretion and Settlement Policy here.
If you have questions about the final PFAS CERCLA Rule or the PFAS Enforcement Discretion and Settlement Policy, please contact Kristin Watt (klwatt@vorys.com), Brooke Zentmeyer (bnzentmeyer@vorys.com), or your Vorys attorney.