Extracted from Law360
On Feb. 24, the U.S. Court of Appeals for the District of Columbia Circuit granted the U.S. Environmental Protection Agency's request for a 60-day stay in industry groups' challenge to the agency's April 2024 rule designating two per- and polyfluoroalkyl substances as "hazardous substances" under the Comprehensive Environmental Response, Compensation, and Liability Act, also known as the Superfund law.
PFAS are synthetic chemicals used in many products and materials by a broad range of industries because they resist heat, water and oil. Given their widespread use, these chemicals are relatively ubiquitous at low levels and have been detected in soil, sediments, groundwater and surface water at many sites. Known as "forever chemicals," PFAS persist in the environment for many years.
The EPA requested the case, Chamber of Commerce of the U.S.A. v. EPA, be held in abeyance to allow the Trump administration time to review the rule. The rule has significant consequences for companies, because it could trigger additional enforcement and litigation, and could also complicate ongoing cleanups across the country.[1]
While the Superfund PFAS rule's future is uncertain, any rollback or rescission would have major implications for industries grappling with its impacts on cleanup and enforcement actions. Changes to the rule could also affect efforts by lawmakers to extend Superfund liability relief to some parties facing PFAS contamination claims.
But more litigation — and additional claims in existing litigation — are likely as long as the rule remains in effect.
Superfund PFAS Rule
The final rule, published in May 2024, designates two PFAS compounds — perfluorooctanoic acid, or PFOA, and perfluorooctanesulfonic acid, or PFOS, and their salts and structural isomers — as hazardous substances under Superfund. Under the rule:
- Releases of PFOA or PFOS of one pound or more over a 24-hour period must be reported to the National Response Center and certain state, local and tribal agencies.
- The EPA can initiate response actions and order parties to investigate and remediate PFOA and PFOS without first showing that conditions pose an imminent and substantial endangerment.
- Parties that incur CERCLA response costs due to PFOA or PFOS may be able to pursue claims for reimbursement or contribution from liable parties.
Challenged in Court
In June 2024, the U.S. Chamber of Commerce and two industry groups — Associated General Contractors of America Inc. and the National Waste and Recycling Association — filed a petition against the EPA in the D.C. Circuit to review the final rule.[2]
The petitioners alleged that the EPA misinterpreted the standard for designation under CERCLA, failed to assess the rule's implications and employed a flawed cost analysis. The petitioners requested that the court vacate the rule.
In the Biden administration's final days, the EPA filed a brief defending the rule and responding to the petitioners' claims. The EPA defended its substantial danger finding as is required for first-time hazardous substance designations, refuted the petitioners' arguments that uncertainty about future response actions precluded the EPA from acting, and asserted there were no violations of the Administrative Procedure Act's procedural requirements.
Change of Administration and Litigation Stay
Following the change of administration, on Feb. 11, the EPA filed an unopposed motion to stay the case for 60 days to allow incoming leadership EPA time to review the underlying rule and determine how to proceed. The EPA stated in its motion that the rule would remain in effect during any stay.
On Feb. 13, environmental group respondent-intervenors filed a brief renewing defenses of the Superfund PFAS rule, but they did not address the EPA's stay request.
Then, on Feb. 24, the D.C. Circuit granted the EPA's request to stay the litigation pending further order of the court.
The Future of the Rule
Although the Superfund PFAS rule remains in effect for now, the EPA's stay request could be an indication of its intent to roll back, revise or rescind it.
The new administration has been urged to reconsider the rule. In a Dec. 5, 2024, letter to then-President-elect Donald Trump, manufacturing groups encouraged the new administration to "reverse course" on the designation and "pause" the rulemaking, and to instead focus on higher-risk nonpolymer PFAS chemicals, instead of polymerized PFAS.
In addition, the Heritage Foundation's Project 2025 explicitly requested the incoming administration to "revisit" the designation of PFAS chemicals as hazardous substances under CERCLA.
Earlier in February, the D.C. Circuit granted a similar request by the EPA for a 60-day stay in a challenge to another PFAS regulation. At issue in that case, American Water Works Association v. EPA, is the EPA's National Primary Drinking Water Regulation that set strict limits for six PFAS in drinking water.[3]
The stay requests and grants in these cases indicate the EPA could be reevaluating its overall objectives and priorities in the PFAS regulatory space. Industries would do well to follow the developments in this space and in federal PFAS regulation policy more generally.
Implications for Industries
Any rollback or rescission of the Superfund PFAS rule would significantly affect industries involved in current or previous cleanups. Industries should continue to monitor the trend of cost recovery claims already filed under the rule as well as legislative efforts to provide Superfund liability relief.
If the Superfund PFAS rule were abandoned entirely, it would bring sweeping relief to the affected industries. Parties involved in Superfund cleanups at existing sites would no longer face the potential obligation to restart investigations or risk assessments to evaluate PFAS.
For sites already deemed closed, parties would no longer face the risk that the EPA may seek to reopen consent decrees to address PFAS. If the federal drinking-water standards for six PFAS are revised or rescinded as well following the litigation stay, those standards would no longer apply to CERCLA cleanup requirements for drinking-water sources.
The Superfund PFAS rule has already prompted states and other entities to file cost recovery claims under CERCLA Section 106. Citing the Superfund PFAS rule as support, these claims seek to recover costs from the military and other potentially liable parties for PFAS cleanup. These include claims of PFAS contamination from firefighting foam, paper mills, landfills and manufacturing plant operations.
If the rule is ultimately rescinded, it is unclear how those actions would proceed. But in the meantime, despite the uncertainty of the rule's fate, more filings and claims in existing litigation can be expected while the rule remains in effect.
Any change to the rule may also affect ongoing efforts by legislators to offer Superfund liability relief to passive receivers of PFAS contamination.
In the U.S. House of Representatives, lawmakers recently reintroduced legislation from 2024, now designated as H.R. 1267, that would provide CERCLA liability protections for drinking water and wastewater treatment systems for PFAS contamination absent gross negligence or willful misconduct.
As long as the rule remains in effect, such efforts to shield certain parties or industries from the liabilities imposed by the rule may continue. Industries should closely monitor any updates from the EPA regarding the Superfund PFAS rule and PFAS regulatory strategy overall to determine the applicable risks and obligations.
[1] Alston & Bird, "Superfund PFAS Rule Will Trigger New Obligations at Many Sites," April 22, 2024, https://www.alston.com/en/insights/publications/2024/04/superfund-pfas-rule-will-trigger-new-obligations.
[2] See Chamber of Commerce of the U.S.A. et al. v. EPA et al., No. 24-1193 (D.C. Cir.).
[3] See American Water Works Association et al. v. EPA, No. 24-1188 (D.C. Cir. Feb. 7, 2025).