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The Insider

Liability Looms For Responsible Parties As EPA Focuses On PFAS Sites

As EPA grapples with taking regulatory actions to address per- and polyfluoroalkyl substances (PFAS), the agency's early efforts to assess some PFAS contaminated sites is sparking concern about responsible parties' looming liability, with EPA potentially requiring them to revisit cleanups thought to be completed.

EPA is considering setting drinking water standards for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) and has begun the regulatory process for listing them as “hazardous substances” under the Superfund law, actions that will begin to create a regulatory architecture for the substances.

But even before EPA takes either of those actions, the agency has begun to conduct sampling at hazardous waste sites where the substances may be present, opening the door to regulators requiring additional remediation at sites where cleanups may have been deemed to be complete.

Attorneys say the agency could require cleanup or additional sampling when regulators conduct five-year reviews of cleanup decisions, though some believe such actions face a high bar. In addition, they say there is heightened concern among industry parties over the possibility that regulators or property owners will trigger “reopener” clauses in cleanup settlements to require remediation once EPA lists the two substances.

“[W]e're already seeing regulatory agencies add requirements pertaining to PFAS to existing cleanup orders at sites without any evidence of PFAS use or contamination,” one industry attorney says.

Although attorneys doubt industry will see across-the-board investigations into PFAS at sites, EPA is nonetheless beginning to sample for the chemicals at sites:

EPA Takes Initial Steps On PFAS Contamination Before Superfund Listing
EPA has begun to sample for potential contamination of two per- and polyfluoroalkyl substances (PFAS) at Superfund sites even before it lists the chemicals as “hazardous substances,” suggesting it could move quickly to require cleanup at sites where the agency had previously committed not to and where prior mandates are addressed.

While industry is bracing for the addition of potential new cleanup liability for PFAS contamination, many liable parties are pushing back against pending agency decisions that could increase any liability they may face.

A case in point is the Defense Department (DOD), which faces roughly $2 billion in estimated cleanup costs for PFAS -- mostly stemming from the chemicals' use in firefighting foam. Behind closed doors, DOD -- along with other federal agencies -- is resisting EPA's proposed groundwater cleanup guidelines and insisting on much weaker limits -- a dispute that has delayed the document's release.

According to Sen. Tom Carper (D-DE), DOD and the National Aeronautics and Space Administration want to set a groundwater cleanup screening level of 400 parts per trillion (ppt) -- much weaker than EPA's plan to align its groundwater number with its 70 ppt drinking water health advisory.

Still, liable parties will likely be subject to a patchwork of groundwater cleanup levels from states. In the latest move, New Jersey regulators set health-based groundwater cleanup standards for the two chemicals at much stricter levels than those suggested by either EPA or DOD:

As EPA, DOD Battle, New Jersey Adopts Strict Groundwater PFAS Level
New Jersey regulators have set strict health-based groundwater cleanup standards for two common per- and polyfluoroalkyl substances (PFAS), adopting interim levels that are forty times more stringent than those being pushed by the Defense Department (DOD) in an ongoing fight with EPA over federal cleanup levels.

But it's not just in federal offices that DOD is fighting to limit its liability. DOD's lawyers are also fighting in court.

In one pending case, the Navy wants the U.S. Court of Appeals for the 3rd Circuit en banc to revisit a precedent-setting 2018 ruling that found the Navy waived its sovereign immunity pursuant to the Resource Conservation & Recovery Act and therefore is not immune from suit for the costs of private party medical monitoring for Pennsylvania residents exposed to PFAS.

The decision, if allowed to stand, opens the Navy to scores of medical monitoring claims in states governed by the 3rd Circuit. But residents are fighting to preserve the ruling:

PFAS plaintiffs urge 3rd Circuit to reject Navy rehearing bid
Pennsylvania residents who want the Navy to fund third-party medical monitoring costs due to their exposure to perfluorinated chemicals are urging a federal appeals court to reject the military's request for rehearing of a ruling that allowed the residents claims to proceed, arguing the Navy is misreading the court's holding that its sovereign immunity is waived.

Air Force officials are also fighting efforts by New Mexico regulators to strictly regulate its waste management practices at a base that has released PFAS to agricultural areas. While the case could set a precedent for how much power states have to enforce requirements at federal facilities, a state request to move the case to state court could limit its precedential value:

New Mexico Court Push May Limit Impact Of Key Suit On State PFAS Powers
New Mexico officials are seeking to steer Defense Department litigation challenging their permit restrictions on per- and polyfluoroalkyl substances (PFAS) to state court, a move that if successful could limit any precedent the litigation may set on federal officials' ability to challenge such state actions.

Liable parties are also challenging the science underlying any future regulatory action, highlighting its uncertainty.

Industry Emphasizes Uncertain Science To Fight Strict PFAS Limits
Industry advocates are welcoming EPA's recently released action plan to address per- and polyfluoroalkyl substances (PFAS), saying it provides an opportunity to consider uncertain science in any future drinking water or other regulations, which some say could result in weaker limits than what the agency has previously offered.