No Further Action Letters may be reopened where PFAS presence is suspected

The US Environmental Protection Agency (EPA) recently used a powerful regulatory tool to designate two PFAS chemicals as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). Consequently, landowners and occupiers may now face costly civil liability even if they have previously demonstrated their compliance with state and federal environmental regulations and received clearance in the form of a No Further Action Letter.

What is the current law?

Under a long-standing federal law, when EPA[1] becomes aware of a release or threatened release of a hazardous substance, it may seek to force any “potentially responsible parties” to help pay for remediation. Under the law, potential responsibility is defined broadly, and it can include any party that is responsible for land harboring a hazardous substance, that was responsible for causing a release of that substance, or even one that transported the substance to the land where it was released. This means that even testing soil for contamination could potentially make a party liable if doing so causes a hazardous substance to spread to previously uncontaminated land.

Crucially, the law allows current owners or occupiers to be held liable even if they did not know that a hazardous substance was present on their land.

Ordinarily, EPA focuses its resources on properties that most threaten public health. However, the law also authorizes state governments and private parties to sue owners and occupiers, and force remediation of contaminated land. If a responsible party becomes aware that their property harbors certain levels of a hazardous substance, they have a legal obligation to report the contamination.

What are PFOS and PFOA?

Perfluoroalkyl and polyfluoroalkyl substances – collectively known as PFAS – are a class of synthetic chemicals first developed in the 1940s, and lauded for their usefulness in an enormous array of products and industries. PFAS tend not to react to other substances or changes in the environment, making them stable.

Simply put, PFAS are ubiquitous, and likely not going away anytime soon. EPA recently declared two PFAS – known as PFOS and PFOA – to be hazardous substances under federal law.

What does EPA’s new rule mean for property owners?

One consequence of this arrangement is that landowners and occupiers who had previously been cleared under existing environmental regulations may still be liable under federal law.

Owners or occupiers will often seek a certification from a qualified expert demonstrating that a property meets all relevant environmental regulations, and that federal or state agencies do not require any additional work to be done at the property. These certifications are typically called No Further Action Letters (NFA letters). NFA letters sometimes represent a promise from the state or the EPA not to sue the owner or operator if the agreed-upon remedy does not fully address the contamination at issue.

Even so, these letters have limitations. For example, under so-called reopener provisions, most NFA letters do not cover hazards on the property that were not detected or not of concern at the time the letter was issued. Since PFAS have only recently become substances of concern, past due diligence investigations did not look for them. Consequently, they are likely to constitute new conditions, which an agency may argue are not protected under NFA letters, leaving property owners and occupiers potentially liable for clean-up costs.

In addition, under threat of a reopener, lenders and prospective purchasers may worry that they will incur liability by securing or purchasing the land, even if the current owner or occupier is not liable under an NFA letters. That risk could drive down the value of a property substantially, or cause increases in insurance premiums or interest rates.

What should you do if your property may be contaminated?

Environmental regulations are complex. Most states also have their own hazardous substance laws, and each treats contamination somewhat differently. In addition, each property presents unique questions of liability.

If you suspect your property may be contaminated with PFAS, contact Andrew Cooper for a consultation on your potential liabilities and best course of action.


[1] The law, known as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 – often referred to as “the Superfund law” or by its acronym, CERCLA. By doing so, EPA can grant itself the power to force a clean-up at any property contaminated by that chemical –and make private parties foot the bill.