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Public Entity Questions About PFAS: What? Who? Where? Why? When? and … How Does This Affect My Entity?

By Bethany J. Ring, Associate; Graves & King, LLP.

What?
What exactly are PFAS?
There are literally thousands of chemicals that fall into the broad designations of per- and polyfluoroalkyl substances, i.e., PFAS, which the EPA may choose to regulate. These manmade chemical structures are resistant to water, heat, and stains and have been used in manufacturing in the United States since the 1950s in food packaging, cookware, firefighting foam, waterproof clothing, personal care products, chromium plating, etc. Public entities are generally not manufacturers of PFAS; rather, a public entity is usually a “passive receiver” of materials containing PFAS (i.e., deposited in landfills, found in water sources, etc.).

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Who?
Who is regulating PFAS?
It seems the United States Environmental Protection Agency (EPA) has had PFAS on the brain lately. To be fair, the EPA actions taken in 2024 have been several years in the making. The EPA began collecting data and assessing risks of PFAS exposure more than a decade ago. The EPA, however, is not alone in pursing PFAS regulation. In California, lawmakers have proposed a blanket ban of PFAS. Senate Bill 903 encompasses nearly 15,000 different chemicals in contrast to the EPA’s limited targeting less than 10 individual PFAS.

Where?
Where are PFAS found?
Because the PFAS chemical structure is a particularly strong structure, it does not easily degrade and can be difficult to destroy. Thus, it is not surprising that PFAS can be found throughout the environment, including in soil, groundwater and surface worldwide.

Why?
Why are PFAS a concern?
Growing recognition of the wide-spread distribution of PFAS and their longevity caught the public’s attention – and that of the EPA – when several studies linked PFAS to a variety of health impacts. PFAS have been commonly referred to in the media as “forever chemicals.”

When?
When did regulation of PFAS begin?
Regulation of PFAS by the EPA began in earnest this year. In January 2024, the EPA finalized a rule to prevent the manufacture of 329 PFAS, added seven PFAS to the Toxic Release Inventory, and released three measurement methods. In February 2024, the EPA proposed two regulations to list nine PFAS compounds as hazardous constituents under the Resource Conservation and Recovery Act (RCRA). In April 2024, the EPA released interim guidance on the destruction and disposal of PFAS-containing materials, issued the Final National Primary Drinking Water Regulation under the Clean Water Act, and added two PFAS (PFOA and PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

How Does This Affect My Entity?
The designation of PFOA (perfluorooctanoic acid) and PFOS (perfluorooctanesulfonic acid) as CERCLA hazardous substances has the highest potential impact on public entities of the EPA actions taken thus far. This EPA Final Rule, published in the Federal Register in May 2024, takes effect on July 8, 2024.

The PFOA/PFOS hazardous substance designation means all facilities are required to immediately report any substance release more than one-pound (within 24-hours) to the National Response Center and state or tribal authorities. Additionally, federal entities that transfer or sell property are required to provide notice about any storage, release, or disposal of PFOA/PFOS on the property, and the U.S. Department of Transportation will be required to include PFOA/PFOS on the hazardous materials list maintained under the Hazardous Material Transportation Act. For sites included on the National Priority List (Superfund sites), the EPA may now request an evaluation of PFOA/PFOS in the site five-year review, potentially reopening formerly closed superfund sites.

Most importantly, CERCLA imposes retroactive, strict, and joint and several liabilities on (1) current owners/operators of facilities with hazardous substances, (2) past owners/operators of facilities that had a release of hazardous substances, (3) persons who arranged for disposal/treatment of hazardous substances, and (4) transporters of hazardous substances. This means each Potentially Responsible Party (PRP) is individually responsible for costs incurred from investigation and remediation, regardless of fault or intent.

CERCLA liability is of particular concern to public entities because even though the entity may not have caused or contributed to PFAS contamination, the entity can be subject to CERCLA liability through the public water systems, municipal solid waste landfills, and publicly owned airports as passive receivers of materials containing regulated PFAS compounds. For example, a public water system may passively store, transport and distribute water which picked up PFAS contamination first released by other entities. Nonetheless, the public water system could face significant liability as a potentially responsible party under CERCLA for their role in distribution.

Enforcement Memo

In conjunction with the CERCLA final rule, the EPA released the PFAS Enforcement Discretion and Settlement Policy (Enforcement Memo) stating the EPA intends to focus its enforcement on entities who “significantly contributed” to the release of PFAS contamination into the environment by taking a balanced approach that considers equitable factors. As such, the Enforcement Memo states the EPA does not intend to pursue enforcement actions against: (1) community water systems and publicly owed treatment works, (2) municipal separate storm sewer systems, (3) publicly owner/operated municipal solid waste landfills, (4) publicly owned airports and local fire departments, and (5) farms where biosolids are applied to land. Additionally, the Enforcement Memo states the EPA will ask major PRPs to waive contribution rights against these entities at the time of settlement.

The Enforcement Memo seems to be the EPA’s answer to public entity concerns that the costs of PFAS remediation would ultimately be borne by rate payers of these public systems, rather than the PRPs responsible for the original contamination. The Enforcement Memo provides relief to public entities who are concerned about PFAS enforcement actions brought by the EPA for their passive systems. It is important to note however that the memo only applies to actions brought by the EPA. It does not apply to actions brought under other federal or state statutes or to actions brought by private parties under CERCLA Section 107.

It is also important to note the Enforcement Memo is not a binding document; it simply captures the EPA’s current position on enforcement. It is subject to outright reversal by subsequent administrations or simple lackadaisical application. Thus, the Enforcement Memo is not a permanent guaranty that the public entities – and hence, the rate paying public – will not ultimately foot the bill for PFAS remediation.

Going forward, public entities should carefully watch how the EPA enforcement actions are pursued with respect to PFAS in the coming years. This includes monitoring how, if, and when the EPA follows its own Enforcement Memo suggestions. Public entities should also monitor the frequency and success of private party actions brought against public entities under CERCLA Section 107. Finally, municipally owned sites with contamination may have increased remediation costs for PFAS remediation in addition to already budgeted costs for other types of remediation.

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