The U.S. Environmental Protection Agency (USEPA) decision to designate some so-called “forever chemicals” as hazardous substances has been upheld by an appeals court. The decision by the U.S. Court of Appeals for the D.C. means companies that create or transport per- and polyfluoroalkyl substances (PFAS) may be held responsible for the future cleanup costs associated with PFAS in the environment.
Hazardous Designation Under CERCLA
The August ruling by the appeals court determined the USEPA was within its authority to designate perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as “hazardous” under the Comprehensive Environmental Response, Compensation and Liability (CERCLA) Act, also known as Superfund, in 2024. Under the rule, entities are required to report releases of PFOA and PFOS that meet or exceed the reportable quantity of one pound within a 24-hour period to the National Response Center, State, Tribal, and local emergency responders.
The following business groups lost the appeal: U.S. Chamber of Commerce, National Waste & Recycling Association, American Chemistry Council, American Fuel & Petrochemical Manufacturers, Associated General Contractors of America, Recycled Materials Association, and the American Forest Paper Association. The business organizations say USEPA did not consider the high cost to industry prior to making the rule.
PFAS & PFOA Enforcement
The designation of PFOA and PFOS as hazardous substances under CERCLA enables USEPA to use one of its strongest enforcement tools to compel polluters to pay for or conduct investigations and cleanup, rather than taxpayers. The designation is especially important because delays in addressing contamination allows PFOA and PFOS to migrate in water and soil, worsening the extent of contamination.
The Update team will continue to monitor developments with PFAS regulations. If you have questions about how PFAS regulations may affect your public water system, reach out to Nate Weisenburger, AE2S Drinking Water Practice Leader.