One of the more consequential, final environmental rules under the Biden Administration was listing two per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA).
The two PFAS that are currently listed as CERCLA hazardous substances are perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS). This listing had an environmental regulatory “ripple effect” and led to litigation to overturn the decision.
CERCLA Liability Concerns
The 2024 decision to list PFOA and PFOS as CERCLA hazardous substances subjects owners/operators of impacted sites to joint and several liability under CERCLA, even if they did not generate the contaminating activity.
In its April 19, 2024, memo, the EPA stated that the agency will use “enforcement discretion” and will not focus on passive receivers of PFAS, such as municipal wastewater treatment plants, landfills, and farm fields (that applied biosolids). However, this assurance does not preclude third-party lawsuits or state-enforcement actions. See our June 4, 2024, blog, “CERCLA and PFAS – EPA’s Enforcement Discretion.”
Additionally, due to the listing of PFOA and PFOS as CERCLA hazardous substances, ASTM modified its Phase I Environmental Site Assessment standard to include an evaluation of these two PFAS when conducting an All Appropriate Inquiry.
The listing of PFOA and PFOS as CERCLA Hazardous Substances raises liability concerns (image purchased from Shutterstock).
PFOA/PFOS CERCLA Rule Challenge
On November 4, 2024, the US Chamber of Commerce, et al., challenged the CERCLA designation, stating, in part:
This lawsuit challenges a first-of-its-kind rule from the Environmental Protection Agency meant to address the potential environmental impact of per- and polyfluoroalkyl substances (PFAS). In promulgating it, EPA has dusted off a provision of one of the most onerous environmental statutes — the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) — that has never been used in the 40 years since the statute was enacted.
CERCLA allows EPA, State governments, and even private parties to hold others liable for environmental contamination caused by ‘hazardous substances.’ Cleaning up this contamination often costs tens of millions of dollars and takes decades. Liability is strict, and generally joint and several. Many courts have concluded that liability is retroactive. And liability can attach to anyone who owns (or has owned) contaminated land, or anyone who arranged for the disposal of the hazardous substances, even if they didn’t know these substances were present.
EPA Re-Evaluating CERCLA Listing
As with many of the Biden-era regulatory decisions, the Trump administration is reconsidering this rule. Inside EPA (paywall) recently reported that “A top EPA waste official appears to be steering the agency toward reversing its planned support for the Biden-era rule designating two legacy PFAS as ‘hazardous substances’ under the Superfund law after hearing industry’s objections to the landmark regulation, with Administrator Lee Zeldin likely to soon decide whether to back the new position.”
The article goes on to say that a decision may be imminent, as the EPA is under a September 17, 2025, deadline to tell the US Court of Appeals for the District of Columbia how it plans to proceed in the industry’s challenge of the CERCLA Listing.
This is potentially a significant policy change. We will post future developments on our PFAS Resource page.
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Environmental Advice
Dragun Corporation has been assisting the regulated community with environmental compliance, assessment/remediation, and litigation support since 1988. If you need assistance with a PFAS-related issue, including litigation support, contact our office at 248-932-0228.
Alan Hahn drafted this blog. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for more than 45 years. He has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.
Matthew Schroeder, M.S., P.E., reviewed this blog. Matt is a senior environmental engineer at Dragun Corporation. Matt has 30 years of experience with soil and groundwater remediation, vapor intrusion, and, more recently, with PFAS. Specific to PFAS, Matt has completed the ITRC PFAS Training; is a member of Michigan PFAS Action Response Team Treatment Technology Roundtable, and Michigan Manufacturers Association PFAS Work Group; and participates in the PFAS Environmental Professionals Symposium. Matt is a frequent speaker, author, and expert witness. See Matt’s bio.
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