Newly Designated Superfund Hazardous Substances Must Now Be Evaluated in Phase I Environmental Site Assessments

Effective July 8, 2024, two types of per- and polyfluoroalkyl substances (PFAS) – perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) – are designated as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the federal Superfund law. This action by the United States Environmental Protection Agency (EPA) increases the risk to real property ownership and may affect contract negotiations, property values, financing options and development costs.

PFOA and PFOS are frequently referred to as "forever chemicals" because they are persistent in the environment. They have been used in a wide array of manufacturing processes and consumer products, including textiles, metal finishing, packaging, cookware, cosmetics, and firefighting foam.

Current owners and operators of property contaminated by PFOA and PFOS are subject to strict and joint liability under CERCLA, even if they did not cause or contribute to the contamination. This liability may include the costs or performance of investigation, evaluation and cleanup, unless the responsible parties establish one of the CERCLA liability defenses - Innocent Landowner, Contiguous Property Owner, or Bona Fide Prospective Purchaser. In addition, releases of PFOA or PFOS are subject to EPA response actions, including the requirement that responsible parties conduct and pay for the cost of investigation, evaluation and cleanup, or reimbursement if EPA performs the work.

Both chemicals must now be evaluated under the ASTM E1527-21 standard for Phase I Environmental Site Assessment (ESA) reports to satisfy the "all appropriate inquiries" requirement to qualify for the CERCLA liability defenses. Parties currently involved in the remediation of a Superfund site should be prepared to address PFOA and PFOS and evaluate how those contaminants might affect not only their own liability, but also the liability of other responsible parties.

Since 2022, legal and regulatory focus on PFAS at both the federal and state level have been intense and rapidly evolving. There are still more questions than answers. This makes it imperative that one consult with experienced environmental legal counsel before acquiring or selling real estate.

If you have any questions, please feel free to contact Donald J. Moran at dmoran@pedersenhoupt.com or (312) 261-2149 or Charles M. Gering at cgering@pedersenhoupt.com or (312) 261-2165.

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