The EPA has announced that it will host two public listening sessions “to seek individual input on concerns about enforcement under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for per- and polyfluoroalkyl substances (PFAS) contamination.”
According to the EPA’s announcement, the sessions will focus on “enforcement policy related to responsible parties’ financial obligations under PFAS contamination response actions.” The input will be considered by the Agency in drafting a CERCLA PFAS enforcement discretion policy. That policy is intended to clarify when EPA intends to use its CERCLA enforcement authorities or its CERCLA enforcement discretion, to the extent PFAS cleanup enforcement efforts occur under CERCLA. According to the EPA:
The policy will take into account various factors, such as EPA’s intention to focus enforcement efforts on PFAS manufacturers and other industries whose actions result in the release of significant amounts of PFAS into the environment, and EPA’s intention to not focus on pursuing entities where factors do not support taking an enforcement action.
The announcement does not provide any insight into what the EPA considers to be “significant amounts of PFAS” or what other “various factors” will be considered when deciding whether to take an enforcement action. Presumably, these factors will be discussed at the listening sessions.
These listening sessions are not intended to seek comment on EPA’s perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) hazardous substance designation rulemaking process. That rulemaking comment period has closed. The EPA has yet to issue a final rule on the matter, although the fact that EPA is working on a CERCLA PFAS enforcement discretion policy hints that the rule may be coming soon.
The sessions are scheduled for Tuesday, March 14, 2023 from 1:00 p.m. to 3:00 p.m. (EST) and Thursday, March 23, 2023, from 10 a.m. to noon (EST). The sessions will also be recorded and made available on the EPA’s enforcement webpage.
You can register for the sessions using the links on this WEBSITE. You can also submit written remarks on or before March 31, 2023 using the links on that same page.
Check back after the session dates for a summary of the discussion!