Last week, USEPA Administrator Regan signed the final rule designating PFOA, PFOS and their salts and structural isomers as hazardous substances pursuant to Sec. 102(a) of CERCLA, the federal Superfund Law.  The designation will be effective 60 days after final publication in the Federal Register.  The designation does primarily two things: (i) it adds these compounds to the list of hazardous substances (the “list of lists”) concerning which EPA can utilize CERCLA's enforcement authorities to take or compel a response action and (ii) it requires reporting of releases (individually) of more than one pound of these substances in any 24-hour period to the National Response Center (under CERCLA) and to state and local authorities under EPCRA.  The designation will undoubtedly be challenged in court given the controversy over the underlying rulemaking record.

Two days later, the Agency released a memo directed to its Regions outlining the enforcement discretion and settlement policies it intends to pursue to protect certain categories of potentially responsible parties (PRPs) liable under the CERCLA statute given the designation and how ubiquitous PFAS are in our human environment.  The memo indicates the Agency's intention to utilize settlement authorities to protect from contribution actions certain classes of innocent parties that would otherwise be PRPs.  Those approaches include requiring waivers in settlements it enters into with “major PRPs” and settling directly with the innocents to create statutory contribution protection.  These categories include community water and wastewater treatment systems, municipal landfills, airports and fire departments (subject their exercise of a high-level of care) and farms that received municipal treatment work biosolids for land application – all subject to the qualifiers of cooperation with the Agency and nonfrustration/nonexacerbation of the cleanup or pollution conditions.  Parties that look like and quack like these ducks can also argue that they are eligible for the same treatment under the policy based on additional (although quite similar) factors outlined in the memo.  

In addition to the near certainty of litigation in response to the designation is the litigation to come concerning liability in site- and case-specific circumstances.  With the Regions follow the memo?  Will the settlement protections be exercised prior to contribution actions being pursued by private parties? Will non-municipal parties that served the same function (and can argue the same equitable factors) be accorded the same favorable treatment by USEPA and USDOJ?  How broadly will liability attach to “other industrial parties” that used PFAS containing materials in their manufacturing processes?  Answers to these and other questions we have are all part of the “What's Next."