General Publications May 3, 2024

“The Coming Wave of PFAS Superfund Enforcement and Litigation,” Law360, May 3, 2024.

Extracted from Law360

On April 19, the U.S. Environmental Protection Agency issued a new rule designating perfluorooctanoic acid, or PFOA, and perfluorooctanesulfonic acid, or PFOS, and their salts and structural isomers as "hazardous substances" under the Comprehensive Environmental Response, Compensation, and Liability Act, also known as the Superfund statute.[1]

The rule will require reporting of certain releases of PFOA and PFOS — which are types of per- and polyfluoroalkyl substances, or PFAS — and will likely trigger additional enforcement and litigation at sites across the country. It may also complicate ongoing cleanups at sites with PFAS contamination, and could potentially require further action at some sites previously deemed closed.

Unless the rule is stayed through a legal challenge, it will go into effect 60 days from the date of its publication in the Federal Register. The rule will have far-ranging effects on many parties across the country.

Companies that manufacture, use or handle PFAS products and materials should evaluate how the new reporting requirements and risk of CERCLA liability may affect their operations. In addition, companies that are involved in Superfund cleanups or CERCLA litigation at sites that may have PFAS contamination should consider whether the rule could trigger additional cleanup obligations or liability, as discussed below.


PFAS are synthetic chemicals manufactured to resist heat, water and oil. They have been used in many products and materials by a broad range of industries — including the aerospace, automotive and military industries, and producers of numerous consumer products. Many types of firefighting foam also contain PFAS.

Given their widespread use, PFAS are relatively ubiquitous at low levels in the environment. The compounds have also been detected at higher levels in soil, sediments, groundwater and surface water at many sites across the country, including airports, military bases, landfills, industrial facilities and water bodies that have received industrial discharges and municipal runoff.

Known as "forever chemicals," PFAS do not degrade easily, but persist in the environment. The EPA focused on PFOA and PFOS specifically for the new rule because of concerns about their toxicity and prevalence, and because they have been studied more than most other types of PFAS.

Some Releases Required to Be Reported

Under the EPA's new rule, any person in charge of a vessel or facility will be required to immediately report any release of PFOA or PFOS equal to or greater than one pound in a 24-hour period to the National Response Center, as well as the state or tribal emergency response commissions and local or tribal emergency planning committees for the areas or regions likely to be affected by the release.

Facilities must also submit a follow-up written report as soon as practicable after the release, often within 30 days. Past releases of PFOA or PFOS that are not continuing as of the rule's effective date need not be reported.

The EPA has stated that it may consider adjusting the reportable quantity for these substances, once it has collected more data on the size of releases and the resulting risks to human health and the environment.

New Superfund Sites to Be Designated

In adding PFOA and PFOS as CERCLA hazardous substances, the rule expands the EPA's authority to address these substances at contaminated sites.

While the EPA currently has the authority to address these and other pollutants or contaminants when it determines that conditions pose an imminent and substantial endangerment, the rule allows the EPA to proceed without making that threshold determination.

In selecting new sites for investigation for PFOA or PFOS, the EPA will have substantial information at its disposal — including self-reported releases under the new rule, and the quickly expanding body of publicly available PFAS data collected under other federal and state statutes and regulations.

The EPA can use the results of initial assessments to determine whether to add sites to the Superfund National Priorities List for further investigation and potential remedial action.

In a recent Q&A, the EPA stated it does not expect the number of Superfund sites to increase substantially after the new rule becomes effective because PFOA and PFOS have already been considered as pollutants or contaminants in some prior National Priorities List listings. However, in giving the EPA greater authority to address PFOA and PFOS, the rule will likely lead to the designation of more Superfund sites as additional areas of contamination are identified.

Other parties that incur CERCLA response costs due to PFOA or PFOS may be able to pursue claims for reimbursement or contribution from potentially responsible parties, even at sites not formally designated under Superfund. This new rule will therefore likely trigger new cost demands and CERCLA litigation.

Costs to Rise, Work to Be Delayed at Some Existing Sites

The new rule could also require significant additional work at existing Superfund sites, increasing costs and delaying the completion of the work. The impact will likely vary among sites, depending on the extent of any PFAS contamination and the stage of the investigation or cleanup.

For sites still in the remedial investigation and feasibility study stage, the EPA may require parties to conduct additional sampling for PFOA and PFOS.

If PFOA or PFOS are detected, it may be necessary to amend any prior risk assessments to include these chemicals. At some sites, such efforts could cost millions of dollars — and may delay the completion of the remedial investigation and feasibility study process by many years.

For sites where the EPA has already selected the remedy through a record of decision, the EPA could pause work on the remedial design or remedial action to allow for PFAS sampling. If PFOA or PFOS are found at actionable levels, the record of decision may need to be amended to ensure that the remedy protects human health and the environment.

While the EPA could also allow remedial work to proceed concurrently as PFAS are assessed, this approach at some sites may raise the risk that ongoing remedial work could be a wasted effort or counterproductive if it's later deemed inconsistent with an amended remedy.

Even at sites where the remedy has already been constructed, PFOA and PFOS could be detected during the operation and maintenance or long-term monitoring. If so, the EPA may seek to require a new investigation focused on these chemicals, which could trigger many years of additional work that could lead to additional remedial action obligations.

For sites where work is being funded under an allocation agreement among potentially responsible parties, additional costs attributed to PFOA and PFOS could prompt calls for a reallocation by parties that didn't contribute to these impacts. When a final allocation has already been memorialized in a consent decree or side agreement, the outcome of these discussions may turn on the agreed-upon terms, including any potential reopeners.

Given the substantial costs and significant delay that could result from adding PFOA and PFOS as analytes at an existing site, parties could explore other means for addressing these chemicals.

It may be possible to avoid substantial revisions to prior work by using an existing analyte as a proxy for PFOA or PFOS, if it can be shown that they are co-located and can be adequately addressed by the same remedy.

Alternatively, parties could seek to show that the PFOA and PFOS don't require remediation because they are part of the anthropogenic background or regional ambient levels.

Possible Reopening of Some Closed Sites

Even at former Superfund sites previously deemed closed, the new rule could lead the EPA to reopen consent decree obligations to require additional sampling if it suspects PFAS contamination based on available data or information on prior uses.

In the recent Q&A regarding the new rule, the EPA stated that the rule, in itself, will not require PFOA and PFOS sampling at closed Superfund sites. However, the EPA acknowledged that additional action for PFOA and PFOS may be required at some sites under the five-year review process to ensure the remedies are protective of human health and the environment.

The level of risk for parties at a closed site may also depend on the terms of their settlements, covenants not to sue and reopeners.

Additional PFAS Compounds That May Be Added

In limiting the new rule to PFOA and PFOS, the EPA hasn't closed the door to designating other PFAS chemicals as hazardous substances. As experience is gained and more data is compiled, the EPA will assess whether to add more PFAS compounds under CERCLA.

In April 2023, the EPA issued an advance notice of proposed rulemaking seeking public input on possible CERCLA hazardous substance designations for seven additional PFAS: perfluorobutane sulfonate, perfluorohexane sulfonate, perfluorononanoic acid, GenX chemicals, perfluorobutanoic acid, perfluorohexanoic acid, perfluorodecanoic acid and their precursors.[2]

The EPA is also moving forward to regulate additional types of PFAS under other statutes, which could affect CERCLA cleanups. On April 10, the EPA set the first-ever federal drinking water standards for six PFAS, some of which may be incorporated into CERCLA cleanup requirements for drinking water sources.

Some states have also adopted PFAS limits that could be incorporated into CERCLA requirements as applicable or relevant and appropriate requirements.

In February, the EPA issued a proposed rule to designate nine PFAS as hazardous constituents under the Resource Conservation and Recovery Act (RCRA). If any PFAS are ultimately designated with the stricter "hazardous waste" classification under RCRA, they will automatically be pulled within CERCLA's definition of hazardous substances.

Sampling for PFOA and PFOS could lead to the discovery of other PFAS contamination.

In testing for these two PFAS compounds, parties may need to use Clean Water Act test method 1633, which tests for 40 types of PFAS. If other PFAS are detected, the EPA could seek to require parties to address these other chemicals as well, perhaps under relevant applicable or relevant and appropriate requirements.

EPA Plan to Focus on Certain Sources Under Its New Enforcement Policy

The EPA simultaneously released a new PFAS enforcement policy with the new rule.[3] Under this policy, the EPA will focus on industrial parties that have manufactured or used PFAS.

The EPA will generally not enforce against community water systems, publicly owned treatment works, municipal separate storm sewer systems, public municipal solid waste landfills, public airports, public fire departments or farms where biosolids are applied to the land. The EPA will also consider measures to shield these parties from liability by entering into friendly settlements with contribution protection, and requiring other settling parties to waive claims against these parties.

The implications of this policy may vary from site to site. At sites where PFAS contamination is attributable to releases from one or more of these shielded sources, the policy could hamper investigation and remediation work by limiting the EPA's enforcement tools against the potentially responsible parties.

Where PFAS contamination is attributable to a mix of shielded and nonshielded sources, the EPA could pursue the nonshielded parties for all the work and costs — which could lead to inequitable outcomes, depending on which nonshielded parties are left liable for the cleanup and the extent of their contribution to the contamination.

In extreme cases, this policy could send uninsured businesses into bankruptcy, as they attempt to clean up contamination caused primarily by other sources shielded from enforcement, while remedial efforts may be starved of needed funding. It remains to be seen how the EPA will respond in these scenarios.

In addition to the EPA's enforcement policy, Congress is also considering liability exemptions under CERCLA.

Over the past year, several bills have been introduced that would exempt many of the same sources shielded under the EPA's enforcement policy from CERCLA liability for PFOA and PFOS. Such liability exemptions could have even broader effects, further limiting the EPA's discretion in pursuing such sources and potentially cutting off other parties' ability to allocate costs, which could undermine efforts to fund cleanup work at some sites.

Companies that use or handle PFAS should evaluate how this rule may affect their operations. In addition, parties that are, or have been, involved in a Superfund cleanup or CERCLA litigation should consider whether the designation of these PFAS compounds could trigger additional work obligations, reopeners or new demands from the EPA or other parties.

[1] 7204-02-OLEM _ Designating PFOA and PFOS as HSs _NPRM_20220823.pdf.



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