We previously wrote at length regarding the Biden Administration’s designation of PFAS CERCLA designation of PFOA and PFOS as “hazardous substances”, and the subsequent legal challenges to the designations. 2025 saw the Court provide EPA several months to decide whether it would uphold the Biden EPA‘s PFOA and PFOS designations (the EPA concluded that it would uphold the designations), briefing from both sides on issues challenging the designations, and third parties filing amicus briefs for the Court to consider. Yesterday, the issues finally culminated in oral argument before a D.C. Circuit Court panel of judges. One takeaway from the hearing is that it remains uncertain how the Court will rule on the challenge to the EPA’s CERCLA designations, as the presiding judges did not appear unified in their positions, nor was there any clear indication of which way the Court will go.

CERCLA PFAS Designation: What Are the Main Issues?

At the heart of the legal challenges to the CERCLA designations, and what consumed almost the entire hearing, is whether EPA overstepped its authority when it pushed through the final rule for PFOA and PFOS designation, allegedly without conducting a proper economic impact analysis or following required public comment opportunities on the analysis that was provided.

The EPA is generally required to conduct a Regulatory Impact Analysis (RIA) under CERCLA for significant new regulations, particularly when the Office of Management and Budget (OMB) designates a proposed rule as “economically significant” (over $100 million in impact), as seen with the PFAS hazardous substance designation, triggering requirements to assess costs, benefits, and the least burdensome approach before finalization. The rulemaking process does allow for exceptions to conducting a required RIA – for instance, in situations where action is deemed necessary by the EPA due to an emergency situation – however, the EPA cannot act independently in determining whether an emergency situation exists. Here, challengers contend that the EPA’s position that a RIA was not required under the circumstances is contradictory to what the EPA ultimately ended up doing, which was to issue a 300 page economic analysis with formal cost-benefit analyses (akin to what would be done in the RIA) when it issued its final rule. Challengers contend that EPA also side-stepped regulatory process requirements in that EPA did not provide any opportunity for public comment on the 300 page analysis.

The EPA argues that the 300 page report is not the same as a RIA, as it was never intended to be a quantitative report (which RIAs are); rather, the report was qualitative, detailing areas of impact and benefit from the final rule. Any quantitative measures also found in the report are exemplars, not a formal qualitative analysis. Further, the EPA argued that in its proposed rule, it did provide an economic impact analysis that the public was thereafter able to comment on, so arguments that challengers did not have any opportunity to weigh in on the information that ultimately went into the final 300 page report are not true.

Various panel justices challenged both sides of the arguments, making it difficult to determine the Court’s ultimate thinking on the issue.

CERCLA PFAS Designation: Impact On Businesses

Once a substance is classified as a “hazardous substance” under CERCLA, the EPA can force parties that it deems to be polluters to either cleanup the polluted site or reimburse the EPA for the full remediation of the contaminated site. Without a PFAS Superfund designation, the EPA can merely attribute blame to parties that it feels contributed to the pollution, but it has no authority to force the parties to remediate or pay costs. The designation also triggers considerable reporting requirements for companies. Currently, those reporting requirements with respect to PFAS do not exist, but they would apply to industries well beyond just PFAS manufacturers. The CERCLA PFAS scope in any final regulation is therefore critical to numerous industries that were or are downstream users of PFAS.

The downstream effects of a PFOA and PFOS designation would be massive, but a designation of the entire class of PFAS or even various subclasses of PFAS would be potentially unquantifiable in financial magnitude. With over 15,000 PFAS in existence according to the EPA and many of them in continued use to this day, the potential environmental pollution ramifications touch on countless industry types. Companies that utilized PFAS in their industrial or manufacturing processes and sent the PFAS waste to landfills or otherwise discharged the chemicals into the environment will be at immediate risk for enforcement action by the EPA given the EPA’s stated intent to hold all PFAS polluters of any kind accountable. Waste management companies should be especially concerned given the large swaths of land that are utilized for landfills and the likely PFAS pollution that can be found in most landfills due to the chemicals’ prevalence in consumer goods. These site owners may be the first targeted when the PFOA/PFOS designation is made, which will lead to lawsuits filed against any company that sent waste to the landfills for contribution to the cost of cleanup that the waste management company or its insured will bear. However, with a broader PFAS designation a possibility now, there should naturally be concern regarding re-openers in the future for these same sites.

Conclusion

Federal and any subsequent state level regulations related to PFAS and CERCLA will impact businesses and industries of many kinds, even if their contribution to contamination issues may seem on the surface to be de minimus. In states that already have PFAS drinking water standards enacted, for example, businesses and property owners have already seen local environmental agencies scrutinize possible sources of PFAS pollution much more closely than ever before, which has resulted in unexpected costs. Companies absolutely must  prepare for regulatory actions that will have significant financial impacts down the road and cannot simply assume that given the current administration’s de-prioritization of environmental issues that CERCLA will never be a business risk.

CMBG3 Law is following judicial, legislative, administrative, and scientific developments relating to PFAS. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.

Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact the Chair of our PFAS – Toxic Torts Team: John Gardella.