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March 7, 2023

EPA’s OECA Will Hold Listening Sessions on Potential CERCLA Enforcement Discretion Policy for Addressing PFAS Contamination at Superfund Sites

Lynn L. Bergeson Carla N. Hutton

The U.S. Environmental Protection Agency (EPA) announced on March 2, 2023, that the Office of Enforcement and Compliance Assurance (OECA) will hold two public listening sessions to receive individual input related to concerns about potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). According to EPA, it will review and consider the input received in drafting a “CERCLA per- and polyfluoroalkyl substances (PFAS) enforcement discretion and settlement policy to the extent that PFAS cleanup enforcement efforts occur under CERCLA.” EPA states that there will be opportunities to provide verbal input during the public listening sessions and written input submissions in a separate form.
The listening sessions will focus on an enforcement policy related to responsible parties’ financial obligations under PFAS contamination response actions. EPA notes that the sessions “will not focus on the actions needed to address PFAS contamination or EPA’s progress in the Agency’s PFAS Strategic Roadmap commitments.”
The sessions will be held:

EPA states that its CERCLA PFAS enforcement discretion and settlement policy “is aimed at addressing stakeholder concerns and reducing uncertainties by clarifying when EPA intends to use its CERCLA enforcement authorities or its CERCLA enforcement discretion.” To the extent that PFAS cleanup enforcement efforts occur under CERCLA, EPA will develop a CERCLA PFAS enforcement discretion and settlement policy. According to 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 not to focus on pursuing entities where factors do not support taking an enforcement action.
Registration is required to attend a listening session. The registration form provides the option for participants to make live verbal remarks or to listen. Information on the opportunity to speak at the session is provided on the registration form. Written comments related to the listening sessions are due March 31, 2023.
EPA notes that these listening sessions are separate from its perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) hazardous substance designation rulemaking process. The input provided through the listening sessions is not part of the rulemaking comment docket. The hazardous substance designation rulemaking comment period has closed.