New PFAS Designation Expected to Spark Rise in Superfund Sites

Companies will have to pay millions of dollars to clean up more contaminated sites due to the EPA’s new Superfund PFAS rule, but site selection will take time and use predictable criteria, mandated data, and established processes, attorneys said.

The EPA issued a final rule (RIN: 2050-AH09) on April 19 designating two commonly detected and well-known per- and polyfluoroalkyl substances (PFAS)—perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS)—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or Superfund law.

Companies, federal agencies, and some local government or state facilities accountable for contaminated sites are worried about the rule, because the liability provisions CERCLA imposes routinely translate into costly litigation and cleanups.

The rule could also trigger potentially responsible parties, or PRPs, that are responsible for a Superfund site to have to reopen a property that was cleaned up or nearly finished, said Bill Beck, a Lathrop GPM LLP partner whose specialties include Superfund and toxic tort litigation.

A new requirement in the rule affecting parties that have been investigating, paying for remediation, or monitoring sites, “can cost millions of dollars,” Beck said. These situations aren’t typically controversial as they’re known to occur, and potentially responsible parties have established well-funded, organized groups to handle them, he said.

But, “it’s an unhappy surprise for everyone in the PRP group,” he said, also noting that investigations may identify new parties.

The EPA’s rule focused on PFOA and PFOS because they’re commonly found especially in water; high concentrations in people’s bodies can justify doctors’ attention to help detect cancer and other diseases; and because they’re among the most-thoroughly researched of chemicals within the group of PFAS often dubbed “forever chemicals” due to their persistence.

They last forever, like stone arrowheads found 70,000 years after hunters used them, said Ian Ross, vice president and PFAS Practice Leader with CDM Smith Inc., an engineering and consulting firm.

Limited Sites Now

So far, only 58 Superfund sites are identified as PFOA- or PFOS-contaminated, according to data compiled from nearly 2,000 locations by the PFAS Project Lab at Northeastern University. Of those, only 23 sites have publicly available precise PFOA and PFOS measurements.

The number of Superfund sites in the lab’s database is substantially fewer than the 1,379 National Priorities List (NPL) or potential NPL sites the EPA recorded as of March 7. The NPL is the EPA’s list of known or potential sites of significant contamination in the US, and it guides cleanups.

Interactive map: Less than 60 of the 1,397 NPL Superfund sites have definitive PFAS testing results.

The divergence makes sense due to the limited state, federal, and other information that’s been available for the university to compile, said Wayne D’Angelo, a partner who co-chairs Kelley Drye & Warren LLP’s environmental law practice.

But PFOA and PFOS data that the EPA increasingly will collect through multiple rules—combined with information from state investigations—and regularly scheduled Superfund site reviews will increase the number of sites where the chemicals have been detected, said D’Angelo and Beck.

Superfund sites are generally reviewed every five years as long as hazardous substances remain on site above levels that would allow the property’s unlimited use and unrestricted exposure, Beck said.

Those reviews will start examining PFOA and PFOS contamination, he said.

Some sites may be reopened if the contamination is significant, Beck said, but “I don’t know it’ll be a lot.”

Additional sites may be identified, because the new CERCLA rule requires private and governmental sites that release one pound or more of PFOA or PFOS in 24 hours to report that release.

Another important data source will come from corporate, federal, and municipal and state sites that release either chemical into the air, water, or land, including disposing of them, Beck said.

Facilities must report those effluents, emissions, and wastes to the Toxics Release Inventory (TRI) that the EPA uses to implement the Emergency Planning and Community Right-to-Know Act (EPCRA), he said.

The agency lowered the threshold that triggers reporting of more than 180 designated PFAS in a final rule issued last year. Facilities must report data from last year’s releases by July 1.

And information may come in through a Toxic Substances Control Act rule that requires chemical producers to provide the EPA with PFAS production and other data since Jan. 1, 2011, D’Angelo said. That data is largely due May 8, 2025, with small manufacturers that import equipment or other goods containing PFAS having until Nov. 10, 2025.

Interactive chart: Only 23 NPL sites have publicly available PFAS testing data.

The data will help states and water utilities investigate sources of ground and drinking water contaminated with PFOA and PFOS, said Jonathan Kalmuss-Katz, an attorney with Earthjustice, a nonprofit public interest organization.

That’s important information because an April 10 EPA rule limits the amount of PFOA, PFOS, and three other PFAS in tap water. The rule’s requirements include initial monitoring of the chemicals by 2027 and reducing PFAS that violate the maximum contaminant limits (MCLs) by 2029.

As water districts investigate and remediate the PFAS, they’ll be looking to hold polluters responsible, Kalmuss-Katz said.

“We’ll see a lot of progress on that front,” he said.

States and the EPA use MCLs as non-regulatory information that helps determine whether groundwater at contaminated sites must be cleaned up.

Hundreds of military, industrial, and other sites are listed on the PFAS Project Lab’s Contamination Site Database due to groundwater contamination.

Disparate, Human Impacts

Increased monitoring and regulatory enforcement of PFAS and other environmental contaminants can help policymakers address racial, ethnic, and socioeconomic disparities in pollution exposure, wrote a team of university scientists led by Rosie Mueller, assistant economics professor from Whitman College, in a study published on April 24 on New Jersey communities.

The researchers compared non-Hispanic White populations to areas with people of color and found the latter were disproportionately served by community water systems with PFAS.

Industrial sites, large airports, and landfills are known to be sources of PFAS contamination in water systems, said co-author Alissa Cordner, an associate professor of sociology also from Whitman College, in emailed answers to questions.

Those types of sites and military bases are disproportionately located near marginalized communities due to systemic inequalities, including historical discrimination in redlining, housing laws, and inequitable enforcement of environmental regulations, she said.

“Drinking water remediation is extremely expensive, and funding for needed drinking water treatment should follow the ‘polluter pays’ model while also working to hold the PFAS manufacturers responsible for decades of producing and selling products that they knew were toxic,” Cordner said.

Converging Complications

PFAS-contaminated Superfund sites will be particularly challenging to deal with due to several factors, said Reza Zarghamee, a Pillsbury Winthrop Shaw Pittman LLP partner working on state and federal Superfund liability and corporate real estate transactions.

PFAS disposal guidance the EPA recently updated didn’t offer clear suggestions to deal with contaminated soils and wastes, he said.

The drinking water limits the EPA issued for PFOA and PFOS are essentially zero, he said. While those limits don’t directly apply to cleanup standards, they illustrate the agency’s “zero-tolerance” perspective towards these chemicals, he said.

The chemicals also are ubiquitous, Zarghamee said. A property’s PFOA or PFOS could come from storm water runoff, not from any activity that took place there, he said. A 2022 study of PFOA and PFOS in rainwater found their concentrations often greatly exceeded the MCLs the EPA has set for drinking water limit.

The combination of all these issues “creates a lot uncertainty that could be dangling over businesses,” Zarghamee said.

“I question how anything under CERCLA can be ‘predictable,’” said Lynn L. Bergeson, managing partner of Bergeson & Campbell PC, which specializes in domestic and international chemical regulations. But, “I suspect there may be a pattern to EPA’s course of conduct.”

There also will be time, said Beck from Lathrop GPM. Due to its limited resources, the EPA is “not chomping at the bit to reopen Superfund sites.”

Meanwhile, companies and regulators need to look beyond remediation, said Cordner. “We also need to look upstream to production, using regulations to turn off the tap of ongoing and new production of PFAS for virtually all uses.”