In April 2024, the Environmental Protection Agency (EPA) designated PFOA and PFOS (two chemicals that are part of the PFAS family of compounds) as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This change in designation - from “pollutants and contaminants” to “hazardous substances” - had substantial policy implications. The EPA can now require that Potentially Responsible Parties (PRPs) investigate and address PFOA and PFAS contamination. Parties that are subsequently deemed responsible for having PFOA and/or PFOS-contaminated sites are now subject to the full suite of CERCLA regulatory action.
This water filtration system is part of a PFAS remediation project at U.S. Air Force base. While the presence of PFAS in firefighting foams is now well known, the family of chemicals is also linked to a wide array of industrial processes and products. (Photo via Defense Visual Information Distribution Service, September 29, 2020). [The appearance of U.S. Department of Defense (DoD) visual information does not imply or constitute DoD endorsement.]
So what are “reopeners” and why is there a sense of inevitability that the new designation of PFOA and PFOS as hazardous substances will trigger them? In 1986, an amendment to CERCLA allowed previously settled claims to be “reopened” if new cleanup demands were triggered by regulatory changes, or upon the discovery of previously unknown site conditions. The status change of PFOA and PFOS certainly falls within these requirements. Additionally, the EPA has reportedly already begun to include testing for PFOA and PFOS in the required 5-year review of CERCLA sites. This is yet another indication that PRPs will soon face investigation into whether they contributed to PFAS contamination at these sites. Leading environmental law firms agree that the time to act is now: evaluate contractual language (bankruptcy releases, insurance coverages, etc.); reengage with other PRPs and their counsel; and uncover any historical documentation that reveals PFOA and/or PFOS usage or disposal at the site in question.
Historical research can be crucial in these investigations. Considering that PFAS were first used commercially in the late 1940s, and have been utilized in a wide array of products, there may be many information gaps that a manufacturer or end user must fill in order to fully understand their potential liability and be able to report in good faith to the EPA. While some cases such as those involving usage and disposal of AFFF firefighting foam are typically more straightforward, in other instances the longstanding and varied usage of PFAS can compound the usual challenges of historical research, as many companies may have limited knowledge or proof of their use of PFAS compounds.
This is where Taylor Research Group (TRG) can assist. We are a pioneer in the research of historical usage and disposal of PFOA, PFOS, and other PFAS end-products. Perhaps even more importantly, we have extensive experience in finding those critical documents that can not only confirm hazardous substance usage at a site, but may provide other information such as volumetric data and waste disposal procedures. As has been the case with other newly classified hazardous substances, we anticipate that research requests related to PFOS, PFOA, and PFAS will continue to increase. If you need information regarding your company’s or client’s historical PFAS usage, or historical contamination at a site, you can rely upon TRG’s expertise and experience to provide the documentation and answers you seek. Contact us today to learn more!