In 2024, the EPA moved to designate two “forever chemicals” as “hazardous substances under CERCLA. That move was challenged in court by the US Chamber of Commerce along with several other industry groups. Last week, the DC Circuit Court ruled in favor of the EPA, opening liability floodgates of federal PFAS enforcement. A recent ArentFox memo discusses the liability implications:
“The designation shifts PFOA and PFOS from “pollutants or contaminants” (where the government bears cleanup costs from public funds) to “hazardous substances” (where EPA can compel responsible parties to clean up and recover costs from polluters). Practically, this means companies that have used, manufactured, transported, or disposed of PFOA and PFOS could now face potential cost-recovery enforcement actions under Section 107, Section 106 abatement orders, and contribution claims from other responsible parties. Companies should ensure that they are aware of their historical exposure to these chemicals across all operations, sites, and supply chains.”
The memo notes that federal PFAS enforcement under CERCLA will not begin immediately. There are still procedural steps the EPA must clear before it can bring enforcement actions. The memo encourages companies to follow this process closely and participate in notice and comment periods as they occur. For now, only PFOA and PFOS are designated as “hazardous substances.” However, with this court victory, the EPA has cleared the path for adding more PFAS compounds to the list.
Our members can learn more about PFAS here.
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