D.C. Circuit Upholds EPA PFAS Hazardous Substance Designation

The U.S. Court of Appeals for the D.C. Circuit upheld EPA’s 2024 rule designating PFOA and PFOS as hazardous substances under CERCLA, rejecting a legal challenge led by the U.S. Chamber of Commerce. The Chamber, joined by six other major trade associations, filed the challenge shortly after the rule was finalized, arguing that EPA exceeded its statutory authority and failed to adequately account for the potentially significant costs and liability consequences of the designation.

The trade associations joining the Chamber included American Chemistry Council (ACC), American Fuel & Petrochemical Manufacturers (AFPM), Associated General Contractors of America (AGC), National Waste & Recycling Association (NWRA), Institute of Scrap Recycling Industries (ISRI), now doing business as the Recycled Materials Association (ReMA), and American Forest & Paper Association (AF&PA).

The Chamber has argued that applying CERCLA’s strict liability framework to PFOA and PFOS could create substantial unintended consequences for businesses, landowners, local governments and other entities that did not manufacture PFAS but may have passively received contamination. It has also warned that litigation and liability costs could divert resources away from actual PFAS cleanup.

The D.C. Circuit rejected the coalition’s arguments, finding that EPA acted within its authority and reasonably considered the rule’s costs, benefits and uncertainties. The ruling leaves the designations in place and preserves the potential for EPA and private parties to pursue cleanup costs from parties deemed responsible under CERCLA.

For ICSC members, the decision underscores continued concerns about liability for passive receivers of PFAS contamination and increases the importance of federal efforts to establish targeted CERCLA liability protections for parties that did not manufacture or intentionally use PFAS.

For more information contact Abby Jagoda at ajagoda@icsc.com.