Alert

PFAS Hazardous Substance Designation Under CERCLA Challenged

July 22, 2024

On July 8, 2024, the U.S. Environmental Protection Agency’s (EPA) designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), along with their salts and isomers, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) went into effect. This is significant because CERCLA, also known as Superfund, is a federal law that holds parties responsible for cleaning up contaminated sites. This designation is a major step forward in addressing PFAS contamination. While the rule applies to PFOA and PFOS specifically, it could have broader implications for other PFAS chemicals in the future.

Three industry groups—the Associated General Contractors of America (AGC), the National Waste & Recycling Association (NWRA), and the Chamber of Commerce of the United States (US Chamber)—have filed a legal challenge against the EPA’s designation. The petition was filed in the U.S. Court of Appeals for the District of Columbia. See Case No. 24-1193.

The issues raised in the petition include:

Whether the EPA failed to provide adequate notice and opportunity to comment before promulgating the Final Rule.

The Administrative Procedure Act (APA) requires that agencies provide adequate notice of proposed rules and a meaningful opportunity for public comment before finalizing any new regulations. Petitioners contend that the EPA did not fulfill these procedural requirements as the notice period was insufficient and that the EPA did not provide adequate information on the potential impacts of designating PFAS as hazardous substances. Failure to provide adequate notice and opportunity to comment could render the final rule procedurally invalid.

Whether the EPA is required to consider costs before designating a substance as hazardous under CERCLA Section 102(a) and whether the EPA appropriately considered costs in promulgating the Final Rule.

While CERCLA focuses on health and environmental safety, petitioners could argue that cost considerations should have played a role in the regulatory process. Petitioners maintain that the EPA failed to adequately consider the economic implications, including compliance costs and potential impacts on affected industries. They assert that under Section 102(a), cost assessments are a critical part of the decision-making process and that the EPA neglected this aspect or used flawed methodologies. 

Whether the EPA erroneously interpreted CERCLA in designating PFOA and PFOS as hazardous substances.

This argument centers on whether the EPA correctly interpreted its authority under CERCLA to designate substances as hazardous. In light of the recent United States Supreme Court’s overruling of the Chevron Doctrine, Petitioners claim that CERCLA does not grant the EPA the authority to broadly classify substances like PFOA and PFOS as hazardous without more specific congressional direction. They argue that the agency overstepped its statutory authority by including a broad class of substances rather than addressing specific chemical compounds individually.

Whether the EPA provided an adequate and reasonable explanation for its conclusion that PFOA and PFOS should be designated as hazardous substances.

In order to pass judicial scrutiny, the EPA must offer a well-reasoned explanation for its actions, especially when designating substances with widespread implications. Petitioners are arguing that the EPA did not provide a sufficient rationale linking PFOA and PFOS to specific environmental and health dangers that warrant their designation as hazardous substances. They vehemently maintain that the agency’s scientific and risk assessment data are incomplete or inadequately substantiated.

Whether the EPA acted arbitrarily, capriciously, and in a manner contrary to the law in promulgating the Final Rule.

The APA prohibits agency actions that are arbitrary and capricious, meaning that they must be based on a rational connection between the facts found and the choice made. The Petitioners assert that the EPA’s final rule is arbitrary and capricious because it lacks a solid evidentiary basis, did not consider viable alternatives, or ignored significant data conflicting with the agency’s position.

Whether the EPA violated the United States Constitution, for example, by imposing retroactive liability through the Final Rule.​

Retroactive liability implies that parties could be held responsible for PFAS contamination that occurred before the substances were officially designated as hazardous. Petitioners are contending that imposing retroactive liability through the new rule violates constitutional protections against ex post facto laws and due process. They might claim that businesses and municipalities acted in compliance with laws at the time of their actions and should not be penalized retroactively.

Each of these issues encapsulates a complex interplay between regulatory authority, procedural fairness, scientific evidence, and constitutional principles. How these issues are resolved will have profound implications for environmental policy, regulatory practices, and the broader legal landscape.