Reopening of No Further Action Letters Possible When Worries of PFAS Exist

Reopening of No Further Action Letters Possible When Worries of PFAS Exist

The EPA Designates Two PFAS Chemicals as Hazardous Substances under CERCLA

Overview of CERCLA Law and Potential Liabilities

The Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, is a long-standing federal law that allows the EPA to force potentially responsible parties to help pay for remediation in the case of a hazardous substance release or threatened release. This includes anyone responsible for land harboring a hazardous substance, those that caused the release, or even those who transported the substance to the land.

Current owners or occupiers of contaminated land can be held liable, even if they were unaware of the presence of hazardous substances. While the EPA usually focuses on properties that pose an immediate threat to public health, state governments and private parties may also sue owners and occupiers to force remediation. Additionally, anyone aware of contamination on their property has a legal obligation to report it.

Understanding PFAS and the New EPA Rule

Perfluoroalkyl and polyfluoroalkyl substances (PFAS) are synthetic chemicals developed in the 1940s, widely used across many industries, and found to be stable due to their non-reactive nature. PFAS have been declared hazardous substances under federal law, including the two most concerning chemicals, PFOS and PFOA.

Implications of the New EPA Rule for Property Owners

While properties may have been cleared under previous environmental regulations, the new EPA ruling means owners and occupiers can still face costly liability under federal law. A No Further Action Letter (NFA letter), which certifies that a property complies with relevant environmental regulations and does not need additional work, may not protect them from liability if hazardous substances were not detected or discovered to be a concern at the time the letter was issued.

Prior due diligence investigations likely did not test for PFAS, as they are relatively new substances of concern. This could leave owners and occupiers liable for cleanup costs, as well as cause lenders and prospective buyers to worry about potential liability under reopener provisions, which can reduce property values and increase insurance premiums or interest rates.

What to Do If Your Property May Be Contaminated

Environmental regulations and liabilities are often complex and differ from state to state. Property owners should consult with an expert in the field to determine their potential liabilities and best course of action. If you suspect your property may be contaminated with PFAS, you should contact a legal expert knowledgeable in environmental law, such as Andrew Cooper.


The EPA’s recent ruling designating two PFAS chemicals as hazardous substances highlights the potential liabilities for owners and occupiers of contaminated land under the Comprehensive Environmental Response, Compensation, and Liability Act. Property owners and occupiers should take all the necessary precautions to protect themselves from liability and to comply with environmental regulations and reporting obligations.

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