The EPA’s New Action Plan: Changes Underway for PFAS, PFOA and PFOS Oversight
In February of 2019, the Environmental Protection Agency (EPA) announced its plan to continue to lead the national effort to reduce risks of per- and polyfluoroalkyl (PFAS) contamination by implementing a new PFAS Action Plan. PFAS are a large group of synthetic chemicals that include perfluorooctanoic acid (PFOA), perfluorooctane sulfonate (PFOS) and thousands of other substances. PFAS are used to manufacture many products including aqueous film forming foam (AFFF), butter wrappers, cookware, pizza boxes, stain repellents, textiles, rubbers, plastics, leather and apparel. They are also used at airports and in the aerospace industry. PFOA and PFOS are the most used and studied of these chemicals. PFOA and PFOS are persistent in the environment and in the human body—both substances were found in up to 99 percent of blood serum samples collected over a 13 year period. Common ways contaminates leach into the environment are through AFFF supply line leaks, the use of aircraft hangar fire suppression systems, firefighting training activities and through its use in fighting fires at airplane crash sites across the nation.
The EPA’s proposed changes have potentially wide-ranging effects on airports and airlines due to airports' use of AFFFs. Airports that are “certified commercial” must have available aircraft rescue and firefighting services while doing carrier operations. As a result, commercial airports must rely on AFFFs—and the only FAA approved AFFF contains PFAS. Airports’ current and past use of AFFFs may result in years of PFAS contamination that may ultimately leach into groundwater and other areas surrounding airport property. Because airports’ reasonable environmental costs, including remediating environmental contamination, can be passed to airlines, the ultimate costs of PFAS contamination could affect airline companies and consumers.
With greater attention to PFAS, airports responding to allegations of contamination should be particularly aware of changes in government action.
The EPA’s 72-page PFAS Substances Action Plan outlines the key actions the agency intends to take relating to PFAS as a class:
- Expand toxicity information for PFAS
- Develop new tools to characterize PFAS in the environment
- Evaluate cleanup approaches
- Develop guidance to facilitate cleanup of contaminated groundwater
- Use enforcement tools to address PFAS[’s] exposure in the environment and assist states in enforcement activities
- Use legal tools, such as those in the Toxic Substances Control Act, to prevent future PFAS contamination
- Address PFAS in drinking water using regulatory and other tools
- Develop new tools and materials to communicate about PFAS
In addition to the above actions, the EPA plans to continue its steps to designate PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA applies to four types of entities, which CERCLA identifies as “potentially responsible parties” (PRPs): (1) current owners and operators where hazardous substances were disposed of; (2) past owners and operators at the time of hazardous substance disposal; (3) generators and parties that arranged for the disposal or transport of hazardous substances; and (4) transporters of hazardous substances.1
The EPA categorized time goals for instituting PFAS change: priority, short-term, and long-term. In each category, the EPA plans to “hold responsible parties accountable” for PFAS, or PFOA and PFOS releases into the environment. Currently, PFOA and PFOS are considered pollutants or contaminants under CERCLA. Therefore, the federal government has cleanup authority “where the federal agency with CERCLA authority has made a determination that the PFOA or PFOS release present[s] an imminent and substantial danger to the public health or welfare.” However, once PFOA and PFOS are fully designated as hazardous substances, CERCLA’s orders and cost recovery authorities will be extended. This new designation under CERCLA will provide more options for the federal government to facilitate its use of response and enforcement authorities, likely resulting in more wide-spread enforcement. While the EPA ushers in change, many states are either taking or are considering taking steps to regulate PFOA and PFOS. Just last year, 3M settled an $850 million suit brought by the Minnesota Attorney General for 3M’s alleged PFAS contamination. Some of the most common lawsuits related to PFOA and PFOS nationwide are against airports, military bases and manufacturers.
Because the EPA has begun the process of reclassifying PFOA and PFOS as hazardous substances, it is important that entities that may become PRPs through this change are aware of the EPA’s plans in order to prevent or mitigate liability. Companies that think they may be considered a PRP under the EPA’s new classification of PFOA and PFOS should understand the risks that reclassification poses and take restorative or preventative action now.
1 42 U.S.C. § 9607(a)(1)-(4).