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.
Be Prepared: EPA’s PFOA and PFOS CERCLA Designation Is Imminent
Taylor Research Group (TRG) recently attended the Environmental Law Institute’s (ELI) monthly PFAS webinar briefing, and we are eager to share our key takeaways from a very timely and informative panel session. The Environmental Protection Agency (EPA) will designate Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA hazardous substances any day now, so the panelists focused on the policy implications of this forthcoming designation. The theme that resonated most for TRG is that industrial firms (and their in-house or outside legal counsel) should prepare now to limit their potential liability costs.
Going Beyond the Phase I Environmental Site Assessment
Phase I Environmental Site Assessment (ESA) reports provide historical overviews of contaminated sites and are often key resources in environmental and toxic tort litigation. However, despite the requirement that they meet set standards, in reality, ESAs often have certain limitations when it comes to historical analysis. Historical research, a required component of ESAs, is often extremely basic and sometimes conducted by personnel without extensive training in historical research methodology. In our experience, ESAs typically check all of the required boxes for historical research but seldom go deeper, consequently leaving out critical historical information. This has proven especially true for properties active prior to the 1970s, or with complicated owner/operator histories. From minor errors in dates and names to misidentification or omission of potentially responsive parties (PRPs), there are possible risks in relying on the incomplete picture typically provided by an ESA.
PFAS: New Developments, Old Problems
Last month, the U.S. Department of Defense issued a new specification for fluorine-free foam (“F3”) that would replace the PFAS-containing AFFF (Aqueous Film-Forming Foam), still widely used by the U.S. military and airport firefighting crews. This is an important step in reducing or ending the use of AFFF, which continues to be used in select applications because it has no adequate replacement. The new specification limits PFAS content in the F3 foam to 1 part per billion. The Federal Aviation Administration (FAA) has been working with the U.S. Navy to develop the new specification, and has advised that it will permit usage of F3 at facilities under its oversight once qualified products have been introduced.
PFAS: Civilian Usage and Disposal
This week we continue our series of blogs reflecting on material covered in the “Impact of PFAS on Environmental Litigation (Virtual) Conference” hosted by Perrin Conferences by examining the growing focus on civilian usage and disposal of PFAS.
When certain PFAS chemicals first became cause for concern, it was the manufacturers of the chemicals themselves—firms such as DuPont and 3M—that were the focus of litigation. As focus broadened to end-users and disposers of chemicals that contained harmful PFAS, it was largely the military that came under scrutiny due to its widespread use of AFFF firefighting foam, as we described in last week’s blog. Today, however, there is also widespread focus on civil users, distributors, and disposers of PFAS-containing material, a point driven home by conference presenters.
PFAS: Military Usage Still a Major Concern
Last week we began our series of blogs reflecting on material covered in the Impact of PFAS on Environmental Litigation (Virtual) Conference hosted by Perrin Conferences, with a look at the federal government’s recent actions to address PFAS in the environment. This week, we’ll take another look at military sources of PFAS contamination. TRG has been a pioneer in researching historical usage and disposal of PFAS end-products such as AFFF during the last decade. In the coming years, we expect our research into AFFF and other PFAS and PFAS-containing chemicals to continue to grow, as our current and future clients in both government and the private sector seek out our in-depth knowledge of the relevant federal, state, and local records and our ability to provide detailed information relevant to their cases.