chevron-down Created with Sketch Beta.

ARTICLE

EPA’s Hazardous Substances Designation for Two PFAS May Increase CERCLA Liability for Past, Mandated PFAS Usage

Kristin Robrock and Bryan Pitts

Summary

  •  Ironically, some PFAS uses were driven by EPA environmental standards.
  •  Mandated PFOS uses included AFFF to meet fire protection standards, as well as metal plating to meet chromium air emission standards.
EPA’s Hazardous Substances Designation for Two PFAS May Increase CERCLA Liability for Past, Mandated PFAS Usage
simonkr via Getty Images

On July 29, 1967, a power surge aboard the USS Forrestal fighting in the Vietnam War triggered the inadvertent firing of a fighter plane rocket located on the flight deck. The rocket hit a 400-gallon fuel tank, spilling flaming fuel that engulfed several aircraft loaded with weapons. These aircraft exploded, tearing a gaping hole in the ship and further fueling the raging fire into the decks below. In the end, 134 sailors died, 161 were injured, and 20 aircraft were destroyed, causing $72 million in damage.

After suffering multiple devastating fires like that aboard the USS Forrestal between 1966 and 1969, the U.S. Navy developed a per- and polyfluoroalkyl substances (PFAS)-containing aqueous film forming foam (AFFF), based on perfluorooctanesulfonic acid (PFOS) chemistries and mandated its use through military specification MIL-F-24385 until 2019.

Now, under a new rule by the Environmental Protection Agency (EPA), entities who were mandated to use PFAS may face liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), i.e., Superfund. In its new ruling on April 19, 2024, EPA designated two PFAS, perfluorooctanoic acid (PFOA) and PFOS, as hazardous substances under CERCLA with the intention of making “polluters accountable for contamination they caused.”

Because PFAS have been (and still are) used in a wide variety of commercial and industrial applications due to their unique and useful physical and chemical properties, this new rule has the potential to affect a wide variety of industries––even though many of these uses of PFAS were formerly mandated or sanctioned by EPA and other U.S. governmental entities (such as the Department of Defense (DOD)) in promulgated rules, standards, or specifications, in order to meet other environmental or safety requirements. This article discusses some specific government-mandated applications and includes a timeline (figure 1) of selected industrial/commercial applications and the various governmental mandates requiring their use. This article is not exhaustive, in that there are many additional uses of PFAS that are required to meet automotive, electronic, telecommunication, and other industrial and commercial standards.

Metal Plating

In the 1950s, the metal plating industry struggled with corrosive acid emissions that chewed away at ventilation equipment designed to keep their workers safe and even corroded lacquer on employees’ cars parked outside these facilities. In collaboration with PFAS manufacturers, the metal plating industry was able to develop PFOS-based fume suppressants for metal plating baths to control corrosive vapor emissions to protect their workers and equipment.

While metal plating facilities adopted the use of fume suppressants on their own throughout the 1970s and 1980s, their use was ultimately mandated to meet hexavalent chromium air emission standards. Specifically, in 1988, the California Air Resources Board passed Rule 1169 for controlling chromium plating emissions., In 1995, EPA followed suit by promulgating National Emission Standards for Hazardous Air Pollutants (NESHAP) for chromium that required the use of fume suppressants for decorative chromium plating and chromium anodizing to meet these new air standards. At the time, most fume suppressants and those certified by the State of California used PFOS.,

In 2007, while amending reporting requirements under the Toxic Substances Control Act (TSCA), EPA allowed the continued use of PFOS as a metal plating fume suppressant and exempted it from reporting new uses. Therefore, meeting the California and EPA air emission standards for chromium in decorative chromium plating and chromium anodizing required the use of PFAS. The use of PFOS in metal plating continued until 2012 when a phaseout commenced, and all usage ceased by 2015.

AFFF

In 1969, the U.S. Navy issued military specification MIL-F-24385, which mandated the use of 6 percent fluorinated surfactant in AFFF. Many AFFF contained PFOS until approximately 2002, when the fluorinated chemistries switched away from PFOS, although incorporated other PFAS with the potential to degrade to PFOA.

MIL-F-24385 was ultimately adopted across all branches of the military, and fluorinated AFFF began to be adopted at civilian airports as well. In fact, in 2004, the Federal Aviation Administration (FAA) published requirements for firefighting at airports, which mandated the use of MIL-F-24385 by 2006. Therefore, the military and the FAA ultimately mandated the use of PFAS-containing AFFF. This mandatory use continued until 2019, when the DOD commenced a phaseout of fluorinated AFFF. Non-fluorinated AFFF mixtures that met the military specifications were not available until late 2023.

Laboratory Equipment

Many chemical testing protocols require the use of polytetrafluoroethylene (PTFE) as stoppers, gaskets, and other components of analytical equipment to minimize loss of the chemicals being analyzed or degradation of the equipment itself. While PTFE is not listed as a CERCLA hazardous substance, PFOA was used to manufacture PTFE until approximately 2013. The EPA has required the use of PTFE in laboratory equipment as part of its chemical testing methods since at least 1973. The Food and Drug Administration (FDA) had laboratory testing protocols as early as 1965 that required the use of PTFE-containing lab equipment.

Automobiles

While the use of PFAS compounds is not specifically mandated by EPA for automobiles, their use has assisted the automobile industry in meeting EPA’s automobile air emission and fuel efficiency requirements and allowed EPA to develop more stringent air standards. For example, fluoropolymer-coated fuel pumps are better able to withstand the corrosive environment caused by alcohols and additives present in modern fuels used to meet EPA’s and the California Air Resources Board’s vehicle emission standards., The use of fluoropolymer-based fuel lines and hoses minimizes evaporative losses of gasoline hydrocarbons to the atmosphere via leaching through the fuel lines. In fact, it was the development of these fluoropolymer technologies that allowed EPA and the State of California to establish more stringent evaporative emission standards for automobile and other mobile sources.

Other Applications

There are many other examples of PFAS usage mandated by various governmental standards, including textiles, electronics, and telecommunications. For example, standards for military water- and wind-resistant textiles required the use of PFAS as early as the mid-1960s and standards for firefighting turnout gear require the use of PFAS.,,, , With respect to electronics, the U.S. military has established a number of military specifications requiring the use of PFAS in wire insulation to meet flame retardancy and electrical standards in defense equipment since approximately 1963.

Ultimately, many industrial, commercial, and governmental entities have used PFOS, PFOA, or other PFAS compounds to meet EPA or other government requirements to improve human health and the environment. And, in turn, the development of PFAS compounds has allowed governmental entities to tighten standards to protect human health and the environment. Ironically, these entities may now face CERCLA liability for their past, mandated PFAS usage if this usage resulted in environmental contamination. 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.

Figure 1. Timeline of selected industrial/commercial PFAS uses and governmental mandates

1965

1970

1975

1980

1985

1990

1995

2000

2005

2010

2015

2020

Figure 1. Timeline of selected industrial/commercial PFAS uses and governmental mandates

Figure 1. Timeline of selected industrial/commercial PFAS uses and governmental mandates

    Authors