On April 19, 2024, EPA announced both the designation of two types of PFAS—PFOA and PFOS—as hazardous substances under CERCLA, and an enforcement policy regarding that designation.  EPA’s enforcement policy states that EPA does not intend to pursue certain entities—including publicly owned water systems, municipal solid waste landfills, airports, local fire departments, and farms where biosolids are applied—where equitable factors do not support seeking response actions or cost recovery for PFOA/PFOS contamination.  

Importantly, the policy also states that EPA may also require that other parties settling with EPA waive their right to seek contribution from such entities. Unfortunately, such waivers may motivate parties that would otherwise settle with EPA for PFAS liabilities to pursue litigation instead. 

In sum, the new EPA policy, though intended to protect some key public service providers from burdensome liability to EPA resulting from the PFOA/PFOS designation under CERCLA, may well result in those entities being subjected to litigation, subjecting them to similar liability to other parties. EPA’s PFAS Enforcement Discretion and Settlement Policy Under CERCLA can be found here.