Assessing Potential PFAS Liability

The Environmental Protection Agency's "hazardous substances" designations for PFOA and PFOS under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) introduce questions of liability for historical uses of PFAS, even in circumstances where such use was mandated or sanctioned by the EPA or other U.S. governmental agencies. 

In their article, "EPA's Hazardous Substances Designation for Two PFAS May Increase CERCLA Liability for Past, Mandated PFAS Usage," published by the American Bar Association, Exponent's Kristin Robrock and Bryan Pitts survey a number of specific, government-mandated applications of PFAS in various settings, such as metal plating and firefighting, as well as the use of PFAS to meet various standards in the automobile, electronics, and telecommunications industries, that could now result in findings of organizational liability.

The article points out that while commercial, industrial, and governmental entities have employed PFAS to meet various governmental requirements to improve human health and the environment, these same entities "may now face CERCLA liability for their past, mandated PFAS usage if this usage resulted in environmental contamination."

From the publication: "This liability could include incurring significant site investigation and remediation costs as well as lengthy and expensive litigation with public and/or private entities under CERCLA's cost recovery and cost contribution provisions at future or reopened federal and state Superfund sites."