A statement to the U.S. Senate panel Examining Federal Efforts to Address PFAS contamination highlighted the U.S. Department of Defense's concern that these "forever chemicals" may take years to remediate at its property. Even now, the DoD notes that only approximately 60 of the hundreds of PFAS substances currently on the market can be analyzed in samples.
DoD properties, including airports and other military bases, are known PFAS-contaminated sites. Pentagon documents often tie this contamination to the use of aqueous film forming foam for firefighting purposes.
But, what happens when the DoD wants to sell its property? Under CERCLA, federal entities may transfer federal property to non-federal entities, provided that certain legal requirements relating to Hazardous Substances on the property, as defined by CERCLA, are met. Critically, federal entities must include a covenant in the deed that any remediation necessary after the date of transfer shall be conducted by the U.S.
Currently, PFAS are not defined as CERCLA Hazardous Substances. This is likely to change for two PFAS substances (PFOA and PFOS) in the near future, however, as a rulemaking to list those substances as Hazardous Substances under CERCLA is expected.
The end result may be the DoD, and other federal entities, take a closer look at transferring federal property based on the required CERCLA covenants and associated liabilities that will likely soon apply to some PFAS chemicals.