^{Legal Alerts |} PFAS Risks for Mining and Metals Companies

Per- and polyfluoroalkyl substances (PFAS)—often called “forever chemicals”—have dominated environmental law headlines in recent years. Most recently, the DC Circuit upheld EPA’s designation of two PFAS compounds (PFOA and PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Mining and metals companies face PFAS-related risks given the many uses of PFAS-containing materials in these industries—from firefighting foams to ore processing and metal finishing. These risks include legacy contamination that may give rise to CERCLA litigation and enforcement, as well as potential ongoing compliance obligations, including Toxics Release Inventory (TRI) reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and discharge permitting under the Clean Water Act (CWA). Companies should consult with counsel to evaluate potential exposure from both ongoing operations and legacy activities.

PFAS are a class of thousands of synthetic chemicals characterized by strong carbon-fluorine bonds, making them resistant to heat, water, and oil. Since their development in the 1940s and 1950s, PFAS have been used extensively in non-stick cookware, fire suppressant foams (AFFF), semiconductor manufacturing, and numerous industrial applications. The chemical properties that make PFAS useful also make them extraordinarily persistent in the environment—they do not break down under normal conditions and can migrate through soil into groundwater. Research has linked certain PFAS to adverse health effects, including reproductive issues and increased cancer risk, driving heightened regulatory scrutiny.

The regulatory landscape for PFAS continues to evolve. Key regulations have been promulgated under the Safe Drinking Water Act (SDWA), the Toxic Substances Control Act (TSCA), and EPCRA. Most significantly for the mining sector, in April 2024, EPA designated PFOA and PFOS as “hazardous substances” under CERCLA Section 102(a)—the first time EPA has exercised this rulemaking authority. The designation requires reporting of releases that meet or exceed one pound within a 24-hour period, authorizes EPA enforcement actions, and exposes potentially responsible parties to strict, joint and several liability.

In a challenge by the U.S. Chamber of Commerce and other industry groups, the DC Circuit recently upheld EPA’s rule, affirming the agency’s authority to designate PFOA and PFOS as hazardous substances under CERCLA (Chamber of Com. of the U.S. v. EPA, 187 F.4th 636 (D.C. Cir. 2026)). The decision removes a key source of regulatory uncertainty and confirms that PFOA and PFOS contamination will remain subject to CERCLA’s enforcement and liability framework.

II. PFAS Use in Mining

PFAS litigation has proliferated in recent years, primarily targeting manufacturers and sites with known AFFF use. Mining and metals operations have received limited attention. However, PFAS risks exist in the sector due both to activities common to other sectors, such as AFFF use, and to industry-specific applications in ore processing and metal finishing. Key activities and sources may include:

• AFFF firefighting foam: PFAS-containing aqueous film-forming foam has been used at mine sites to combat fires in remote locations and high-hazard settings. For example, at the Sugar Camp Mine in Illinois, AFFF deployment to combat an underground fire resulted in PFOS concentrations in nearby surface waters exceeding 50 times the federal drinking water standard, leading to enforcement and private litigation.
• Leaching and flotation: PFAS-based surfactants have been used in copper and gold extraction operations to enhance wetting and improve metal recovery.
• Mist suppression and metal finishing: PFAS have been used as mist suppressants in copper electrowinning and as wetting agents in chrome plating, electroplating, and anodizing operations.
• Equipment and materials: Fluoropolymers are used in equipment components, including pipes, cables, hoses, and conveyor belts. PFAS-based surfactants may also be present in drilling fluids, paints, coatings, and cleaners used in mining operations, although these products do not necessarily contain PFOA or PFOS.
• Biosolids: Biosolids (treated sewage sludge) have been used to improve revegetation and reclamation at legacy mining sites but often contain PFAS. The Palmerton Zinc Pile Superfund site illustrates this risk—biosolids applied in the 1990s for site revegetation are now recognized as the likely source of PFAS contamination in the municipal drinking water supply. Maine has prohibited land application of biosolids, and other states, like Connecticut, have enacted similar laws.

III. Litigation, Enforcement, and Compliance Risks

As noted, PFAS-related risks for mining and metals companies may include both legacy contamination concerns (e.g., under CERCLA) and ongoing compliance requirements (e.g., CWA permitting and TRI reporting). The key regulatory frameworks are summarized below.

CERCLA: CERCLA authorizes EPA enforcement actions to compel cleanups and civil actions to recover response costs, imposing strict, joint and several liability on potentially responsible parties. Following the 2024 designation of PFOA and PFOS as hazardous substances—now upheld by the DC Circuit—facilities must report releases that meet or exceed one pound within a 24-hour period. In an April 2024 memo, EPA indicated it will focus enforcement on “significant contributors” (manufacturers, industrial users, federal facilities) rather than “passive receivers” (water utilities, landfills, farms). Mining and metals operators may fall in the contributor category depending on the circumstances, and EPA has begun evaluating the possible presence of PFAS in mine site cleanups. Importantly, EPA’s enforcement discretion policy does not bind private parties or states, which may bring their own CERCLA suits—including claims for natural resource damages by the states.

EPCRA and TSCA: Through the TRI program, EPCRA requires reporting by certain facilities that manufacture, process, or otherwise use listed PFAS above threshold quantities. Over 200 PFAS are now TRI-reportable with a 100-pound threshold—significantly below standard TRI thresholds. Metal mining and coal mining are covered sectors. EPA has also designated PFAS as “chemicals of special concern,” eliminating the de minimis exemption, so PFAS in low concentrations in mixtures and trade-name products must be counted toward thresholds. TRI reporting can apply to ancillary use of PFAS-containing products, meaning operators may have reporting obligations even if they are not involved in PFAS manufacturing. Additionally, companies that have imported PFAS-containing equipment could face reporting obligations under Section 8(a)(7) of TSCA, although EPA has proposed a rule that would implement broad exemptions and reduce exposure for importers and products with only small amounts of PFAS.

CWA: There is growing pressure to monitor for and limit PFAS in permitted discharges. EPA has signaled it may pursue PFAS-related effluent limitation guidelines (including for metal finishing and electroplating wastewater discharges that may contain PFAS), and PFAS-related permit terms are emerging. Citizen suits under the CWA have already targeted PFAS contamination from biosolids application, resulting in consent decrees requiring remedial actions (for example, this decree in Coosa River Basin Initiative v. City of Calhoun, No. 4:24-cv-68 (N.D. Ga. Aug. 8, 2024)).

SDWA: EPA’s 2024 National Primary Drinking Water Regulation established Maximum Contaminant Levels (MCLs) of 4.0 ppt for PFOA and PFOS. Remote mine sites that operate water systems serving 25 or more people may be subject to these requirements. Initial monitoring must be completed by April 2027, with MCL compliance required by 2029. EPA has proposed extending certain deadlines and rescinding some MCLs (for PFHxS, PFNA, HFPO-DA, and the hazard index), but the 2024 rule remains in effect for now.

State laws and other exposure: Many states have enacted PFAS-specific regulations that exceed federal requirements. These include state-level PFAS drinking water standards, restrictions on PFAS in products and packaging, biosolids application prohibitions, and state superfund or cleanup programs targeting PFAS contamination. Companies should monitor developments in states where they operate, as compliance obligations vary by jurisdiction. Additionally, common-law toxic tort suits against potential sources of PFAS contamination are becoming more common, although many cases related to AFFF use have been, and are being, absorbed into ongoing multidistrict litigation in the District of South Carolina.

IV. Next Steps

Given the expanding web of PFAS regulations, mining and metals companies should take proactive steps to assess and manage their PFAS-related risks. There is no one-size-fits-all approach, and companies should carefully evaluate whether and how to address potential PFAS liabilities, particularly those associated with PFOA and PFOS. However, mandatory reporting requirements (under CERCLA and potentially EPCRA and TSCA) and monitoring requirements (under the SDWA) make at least some level of compliance assessment prudent.

Potential action items include the following:

• Assess historical and current operations – Evaluate which PFAS were historically used or are currently used in operations, including AFFF for firefighting, surfactants in ore processing, fluoropolymer equipment components, and biosolids used for reclamation. Sites near water supplies warrant priority attention. Where feasible, explore opportunities to reduce or eliminate PFAS use through substitution or process changes.
• Review insurance coverage – Engage counsel and carriers to review current policies for PFAS exclusions and assess whether legacy policies may cover claims arising now.
• Preserve institutional knowledge – Identify employees, retirees, or contractors with knowledge of historical PFAS use and develop a plan to capture that information. This knowledge base is critical to assessing liability and constructing a defensible factual record.
• Establish compliance protocols – Develop internal protocols for evaluating PFAS in new materials, tracking regulatory updates, and ensuring adherence to mandatory reporting under CERCLA and EPCRA and monitoring requirements under the SDWA.
• Evaluate disclosure obligations – Public companies should assess whether PFAS-related exposure warrants disclosure in financial filings. All companies should consider how potential PFAS liabilities may affect lending relationships and project financing.
• Address transactional considerations – PFAS considerations are increasingly relevant in property and asset transactions. Buyers and sellers should consult with environmental counsel on how best to evaluate and address PFAS in the transactional context. Companies may consider updating due diligence protocols, including Phase I environmental site assessment practices, to include PFAS-specific evaluations as warranted by the context. Like other legacy and compliance issues, PFAS-related liabilities can be addressed through various means, including indemnification provisions, environmental representations and warranties, and purchase price adjustment mechanisms.

Davis Graham has extensive experience with the transactional, operational, and environmental considerations facing mining and metals companies. For questions about this legal alert, please contact a member of the Energy & Mining Group or Environmental & Public Lands Group.