DC Circuit Upholds EPA’s CERCLA ‘Hazardous Substance’ Listing for PFOA/PFOS
A federal appeals court unanimously affirmed the EPA's 2024 rule designating two common 'forever chemicals' as hazardous substances under the Superfund law, confirming the agency's authority to compel investigation and cleanup.
The U.S. Court of Appeals for the D.C. Circuit has unanimously upheld the Environmental Protection Agency's 2024 designation of PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and liability Act (CERCLA). The decision in Chamber of Commerce v. EPA affirms the agency’s authority to require reporting of releases of these two common “forever chemicals” and to compel potentially responsible parties to investigate and remediate contamination at Superfund sites nationwide.
This ruling creates significant new liabilities for a broad spectrum of clients, impacting not only chemical manufacturers but also downstream users and property owners where these substances may be present. The court found the EPA reasonably explained its decision despite scientific uncertainties and properly interpreted its authority. It held that the statutory standard, “may present a substantial risk of harm,” requires only a “scientifically possible substantial risk.”
While the court found the EPA’s cost-benefit analysis sufficient for this rule, it explicitly declined to decide whether such an analysis is statutorily required for future designations, leaving a key issue open for subsequent challenges. Counsel should advise clients to evaluate their potential PFOA/PFOS liabilities and watch for further EPA action.