DC Circuit Backs EPA on PFOA/PFOS Hazardous Substance Designation
The D.C. Circuit has upheld the EPA's designation of PFOA and PFOS as hazardous substances under the Superfund law, confirming expanded liability for a wide range of industries with historic ties to the chemicals.
A U.S. Court of Appeals for the D.C. Circuit panel unanimously upheld the Environmental Protection Agency's rule designating PFOA and PFOS—two widely used PFAS chemicals—as "hazardous substances" under the Comprehensive Environmental Response, Compensation, and liability Act (CERCLA). Industry groups had challenged the rule, arguing the EPA exceeded its authority and conducted a flawed cost-benefit analysis. The court rejected these arguments, finding the agency can regulate substances based on a plausible, substantial risk of danger without needing to prove certain harm.
The decision solidifies a major expansion of environmental liability. Companies with current or past connections to PFOA or PFOS now face potential government enforcement and private-party cost-recovery claims for cleanup under the Superfund law. The ruling also confirms federal reporting obligations for releases of these chemicals exceeding one pound. The court's deferential interpretation of the EPA's authority may pave the way for the agency to designate additional PFAS chemicals as hazardous, further broadening regulatory risk for industries such as manufacturing, waste management, construction, and real estate. This ruling is strong precedent, making an appeal difficult. Affected businesses should evaluate potential liability and reporting duties.