Court Unanimously Rejects Appeal of PFAS CERCLA Rule
On August 17, the U.S. Court of Appeals (DC Circuit) rejected a U.S. Chamber of Commerce’s challenge to the U.S. Environmental Protection Agency’s (EPA) 2024 final rule designating PFOS and PFOA as CERCLA hazardous substances. The unanimous decision by the D.C. Circuit rejected the Chamber’s argument that EPA violated the Administrative Procedures Act when issuing the 2024 final rule. The Administrative Procedures Act outlines the process for how the federal agencies are to undertake to issue lawful rules and regulations. The result of the D.C Court’s decision means that the designation stays in place and will continue to guide the use of CERCLA to pursue both clean-ups and liability of PFOS and PFOA. This development comes as Congress is continuing to try and find a legislative path forward to protect passive receivers of PFAS chemicals, including wastewater utilities, from being held liable for clean-up costs under CERCLA by third parties.

The court’s judgement and opinion can be accessed here and here, respectively. Key takeaways of the decision for CASA membership include:

  1. EPA did not violate the public comment process as the court found that changes to a rule after the initial public comments are to be expected. Further, any ability to challenge any change would lead to perpetual public comments.
  2. CERCLA provides for defenses against liability and CERCLA classifies a hazardous substance as those listed or designated in other statutes like the Clean Water Act.
  3. CERCLA allows EPA to designate “elements, compounds, mixtures, solutions and substances…that may present a substantial danger to public health or welfare or the environment”.
  4. EPA made its decision to designate PFAS relying upon years of public health data and persistence.
  5. EPA, based upon CERCLA, must be provided deference (citing the earlier U.S. Supreme Court Loper Bright decision) in designating chemicals.
  6. The Court found that the claims of violation of the Administrative Procedures Act on matters ranging from economic analysis, regulatory impact analysis, and cost benefit analysis were lacking based upon the law.
  7. Claims that the challengers’ interpretation of “may” in the case of harm from PFAS means that harm “will be actually existing or real” were rejected by the D.C. Court, noting that the term “may” is to permit review and does not require an actual finding of harm in deciding to designate. The D.C. Court’s decision states that if this test were intended, Congress would have used the term “will” harm in the statute and not “may” along with the fact that the law states that CERCLA requires a finding of a release may present a “substantial danger” to public health, or welfare, or the environment.