On April 19, 2024, the United States Environmental Protection Agency (EPA) issued a prepublication version of its final rule establishing some per- and polyfluoroalkyl substances (PFAS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Recovery Act (CERCLA, or Superfund).  Simultaneously, EPA issued a PFAS Enforcement Discretion and Settlement Policy Under CERCLA (PFAS Enforcement Policy) that describes EPA’s approach to enforcement. 

The Rule designates two of the most widely used PFAS – perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers – as hazardous substances under CERCLA.  It implements the August 2022 proposed rule and will go into effect 60 days after publication in the Federal Register. 

As anticipated, the Rule will have far-reaching impacts on the regulatory and litigation landscape for all entities responsible for and/or contending with the effects of PFAS contamination, including airport operators grappling with the effects of decades of FAA-mandated use of PFAS-containing Aqueous Film-Forming Foam (AFFF) at Part 139-certificated airports nationwide.  Because CERCLA imposes statutory liability that is joint, several, and retroactive for owners or operators of sites where there are or have been releases of hazardous substances, airport operators are potentially liable for past releases of PFAS on their airport property, regardless of full compliance with all applicable laws and regulations, and regardless of who was responsible for the release.  The same is true for operators of solid waste landfills with PFAS releases, operators of public water supplies containing PFAS, and other entities.  In addition to potential enforcement by EPA, parties responsible for releases of PFOA and PFOS could also be targets of cost recovery lawsuits by other responsible parties.  Thus, the designation is a significant development indeed. 

However, EPA, in response to widespread concerns from airport operators and other municipal entities, has softened the blow of the PFAS designation by simultaneously issuing its PFAS Enforcement Policy.  This policy clearly sets forth EPA’s intent to focus enforcement efforts on PFAS manufacturers and other industrial entities, not on a defined list of municipal entities that provide important public services: publicly owned airports and local fire departments, community water systems and publicly owned treatment works, municipal separate storm sewer systems, publicly owned/operated municipal solid waste landfills, and farms where biosolids are applied to the land.  Further, EPA indicates it will do its best to shield such parties from the long arm of CERCLA liability as much as possible using the tools at its disposal, by requiring in EPA settlements that settling responsible parties like PFAS manufacturers or other industrial entities waive their right to sue municipal entities for contribution, or offering agency settlement agreements with municipal parties where factors do not support enforcement so as to provide settlement protections like bars against third-party contribution claims.

EPA’s enforcement policy is a positive development for airport operators and other public entities now saddled with CERCLA liability for PFAS releases.  However, such entities should still take care to comply with all applicable laws and guidance regarding PFAS, and to act with great care not to release PFAS or exacerbate any existing PFAS contamination.  EPA’s policy cannot undo statutory liability, and the policy itself indicates that even public entities will be held accountable by EPA for PFAS releases where appropriate.  Indeed, EPA warns that even municipal actors will be held accountable if their “actions or inactions significantly contribute to, or exacerbate the spread of significant quantities of PFAS contamination, thereby requiring a CERCLA response action.”  It also is still possible that municipal entities like airport operators and wastewater treatment plants may be held liable in cost recovery suits for PFAS releases where EPA is not a party.

Kaplan Kirsch & Rockwell regularly counsels clients, both public and private, on regulatory compliance, emerging contaminants, and strategies to comply with environmental laws and reduce environmental liability.  For more information about PFAS, the proposed rule, or how PFAS regulation or liability may impact your organization, please contact Thomas A. Bloomfield, Polly B. Jessen, Sara V. Mogharabi, or Timothy Roth.