Those involved in the legal or technical aspects of per- and polyfluoroalkyl substances (PFAS) expect the current administration to take a very different approach in addressing the “forever chemicals.” Policies passed under the Biden Administration are being challenged, and litigation is affecting more consumer products. While a course change is almost a certainty, litigation surrounding PFAS will likely continue to escalate.
In a blog by Jones Day they write, “In remarks at the Environmental Council of the States’ 2025 spring meeting, EPA Administrator Zeldin indicated that no decisions have yet been made on how the Agency is going to address PFAS, but that it will weigh the concerns of stakeholders, including water utilities and others, such as HHS Secretary Kennedy, who are concerned about PFAS in the environment.”
CERCLA Designation Challenged
The 2024 CERCLA (Comprehensive Environmental Response Compensation and Liability Act) designation for two specific PFAS is facing legal challenges. As we discussed in our blog on July 30, 2024, the US Chamber of Commerce filed a petition in the D.C. Circuit Court regarding the CERCLA designation of Perfluorooctanoic acid (PFOA) and Perfluorooctane sulfonic acid (PFOS) as CERCLA hazardous substances. The D.C. Circuit recently granted EPA’s request to stay a legal challenge that was filed last year.
According to a blog by the law firm Dechert, industry groups assert three main arguments in support of their Petition for Review.
First, they argue that EPA misinterprets the standard for deeming a substance hazardous, making such a designation based on whether “there’s any ‘possibility’ it could harm humans, animals, or the environment.” Petitioners’ Br. 32. According to opponents of the designation, EPA’s reading of the rule is a “blank check” to designate substances as harmful since “almost any substance,” even salt, “could clear this minimal bar.”
Second, EPA’s evaluation of costs was flawed because it ignored certain categories of costs altogether, “drastically underestimated others, and mistook some costs for benefits.”
Third, EPA failed to assess the widespread consequences, such as unintended impacts on real estate transactions, and thus was arbitrary and capricious.
While a course change is almost a certainty, litigation surrounding PFAS will likely continue to escalate.
Support for CERCLA Designation
The challenge of the CERCLA listing notwithstanding, on January 24, 2025, New York, Arizona, Colorado, Connecticut, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, Oregon, Washington, Wisconsin, and the District of Columbia filed an amici brief supporting the EPA’s hazardous substance designation of PFOA and PFOS under CERCLA.
According to the filing, the states believe that “The Rule unlocks CERCLA’s highly effective toolkit to clean up PFOA- and PFOS-contaminated sites across the country.” While CERCLA will provide regulatory teeth, it creates the potential for significant hurdles in commercial property transactions.
Using PFAS CERCLA Designation to Litigate
With PFOA designated as a CERCLA hazardous substance, in December 2024, the State of Maryland filed a lawsuit against W.L. Gore for PFAS contamination, which involves 13 facilities.
From a blog by the law firm, Pillsbury, “The lawsuit, State of Maryland v. W.L. Gore & Associates, Inc., No. 1:24-cv-03656-RDB (D. Md..), alleges that Gore’s decades-long use of perfluorooctanoic acid (PFOA) and other PFAS has led to groundwater, surface water and soil contamination. Along with state law claims, Maryland, enabled by EPA’s April 2024 designation of PFOA as a hazardous substance, has asserted claims for cleanup costs and natural resource damages (NRD) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).”
Litigating PFAS and “Green Claims”
Claiming a product is “green” or attributing other eco-related claims to a product has always carried some risks. Given the widespread presence of PFAS in various consumer products, there are increased risks associated with some of these claims.
Morgan Lewis discussing how PFAS is impacting these claims wrote, “These lawsuits, which often challenge statements made about a product—for instance, statements that a product is ‘natural,’ ‘environmentally-friendly,’ or ‘healthy’—because they purportedly contain PFAS or microplastics, have moved beyond run-of-the-mill fraud or false-labeling cases to lawsuits falling squarely in the environmental, social, and governance (ESG) domain.”
They also report that frequently these legal actions are brought as class actions. The lawsuits seek economic losses in the form of a price premium that consumers paid to purchase the green alternatives.
We provided litigation support on a case that fits this narrative and this was before PFAS legal actions reached the current crescendo.
Contrarian Voices
Finally, it’s worth noting that some in the scientific community are suggesting a more measured approach to addressing PFAS. Susan Goldhaber, MPH, of the American Council on Science and Health, has long been critical of the general approach to addressing PFAS. Earlier this year, in addressing PFAS in cosmetics, Ms. Goldbaber wrote, “PFAS in cosmetics is the latest frontier for advocacy groups who have pressured regulatory agencies to ignore the scientific evidence and set regulations at unnecessarily low levels.”
“PFAS should be regulated based on the guiding principle of toxicology, ‘The Dose Makes the Poison.’ Unfortunately, the EPA has ignored this principle in setting regulations for PFAS in drinking water, cherry-picking human studies that show the desired results and ignoring studies that don’t fit their narrative. The EPA claims that PFAS cause health effects related to reproduction, increased risk of some cancers, and immune system disorders. However, an examination of these studies shows correlation, not a causation.”
For more information on PFAS, see our PFAS Resource Page and our other blogs on PFAS.
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 Jeffrey Bolin, M.S., CHMM, at 248-932-0228, Ext. 125.
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.
Jeffrey Bolin, M.S., reviewed this blog. Jeff is a partner and senior scientist at Dragun Corporation. He is a published author, a frequent speaker, and an expert witness. His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.
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