William & Mary Environmental Law and Policy Review


Per- and polyfluoroalkyl substances, shortened to “PFAS,” are a broad class of approximately 4,000 to 6,000 industrial chemicals characterized by a carbon chain saturated with fluorine molecules. This structure, dominated by carbon-fluorine bonds, is one of the most stable known chemical structures—and it is this stability that lies at the core of both the usefulness and the greatest issues surrounding PFAS. They are generally non-reactive except at tailored “active sites” and they never break down naturally—leading to the nickname “forever chemicals.” The persistence of their structures creates a plethora of desirable characteristics: PFAS are grease-resistant, waterproof, fireproof, stain-proof, and chemically inert. They can be used to put out fires, or cause grease to bead and run off a shirt, or to manufacture waterproof boots. They are ideal for a wide variety of industries, including cosmetics, firefighting, food packaging, inks, oil production, mining, and textiles. PFAS have been used to make numerous well-known products such as Teflon, Scotch Gard, and Gore-Tex. This stability also creates a variety of undesirable characteristics. PFAS persist in the environment long after introduction stops, they have been found to be extremely mobile in water, environmentally persistent, and bio-accumulative. They have been found in surface and drinking water throughout the United States, are known to travel through groundwater systems, and can accumulate in people’s blood, where they cause a variety of detrimental health effects.

The Center for Disease Control (“CDC”) has found four PFAS in the bloodserum of nearly all people tested for in the Fourth National Report on Human Exposure to Environmental Chemicals indicating widespread exposure by Americans.

While several specific PFAS—perfluorooctanesulfonic acid (“PFOS”), perfluorononanoic acid (“PFNA”), and perfluorooctanoic acid (“PFOA”)— have recently surfaced in the public and regulatory consciousness, the vast majority of the class remains unstudied and unregulated. Out of the thousands of compounds, robust studies have been done on only around twelve. Out of which, there is reliable toxicology data for a few. There is a widely accepted consensus in scientific literature that exposure to PFAS leads to “adverse human health effects” as noted by the Environmental Protection Agency (“EPA”).

Through decades of use, compounded by chemical persistence, PFAS have been found throughout the environment in water, sediment, soil, waste, compost, plants, animals, and humans.

This Note will analyze some of the budding regulatory regimes for PFAS at the state and federal level. It will explore how PFAS-relevant articles and riders passed in the 2020 National Defense Authorization Act (“NDAA”) will change the current PFAS regime, and how proposed, but unsuccessful parts of the Act could, and should be implemented. The NDAA broached new ground by requiring the Department of Defense (“DOD”) to regulate PFAS as if it were a hazardous substance under a plethora of environmental laws including the Clean Air Act (“CAA”), the Safe Drinking Water Act (“SDWA”), the Resource Conservation and Recovery Act (“RCRA”), the Toxic Substance Control Act (“TSCA”), and the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). It also funds information gathering about the chemicals and sets a federal definition for PFAS. Throughout the bill, Congress creates requirements for the DOD to act as if PFAS are listed hazardous substances but stops short of explicitly requiring the substances to be listed by the EPA—a necessary condition for triggering significant portions of toxic substance law. Facially the 2020 NDAA sets different standards of protection based on military affiliation and potentially triggers CERCLA liability through an ambiguous article for two PFAS: PFOA and PFOS.24

This Note will focus on exploring each of these issues in more depth and will argue that in line with the purpose of CERCLA and the wording of specific sections in the NDAA, that when Congress explicitly intends to unleash CERCLA it must be available to all parties and not be a sword reserved to the DOD. The Note will finish with policy and legal recommendations for addressing PFAS contamination.