A federal court on Tuesday upheld the Environmental Protection Agency’s designation of two “forever chemicals,” PFOA and PFOS, as hazardous substances.
The designation expands the federal government’s power to hold parties that release chemicals into the environment liable for their cleanup under the Superfund law, also known as CERCLA. It also creates requirements for notifications when more than one pound of those chemicals are released.
PFOA and PFOS are part of a larger group known as PFAS chemicals, which are linked to certain kinds of cancer and other negative health outcomes. PFAS are widespread in the environment and in drinking water, and are present in the blood of almost every person in the United States.
“This decision is a major win for contaminated communities across the country,” Jonathan Kalmuss-Katz, an attorney with Earthjustice, said in a statement. “For too long, industrial polluters have profited from the release of toxic PFAS while sticking taxpayers and communities with the bill when those releases need to be cleaned up.”
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The chemicals don’t break down easily in the environment and they accumulate in human bodies — two properties the EPA cited when designated PFOA and PFOS as hazardous substances in 2024. But the ubiquity of the chemicals also creates a complex landscape for legal accountability.
The U.S. Chamber of Commerce and several industry groups, including the American Chemistry Council and the National Waste and Recycling Association, argued the EPA didn’t do enough to consider the costs that businesses and local organizations may have to bear and didn’t do enough to prove that “substantial danger” was certain to occur when PFOA or PFOS were released into the environment.
Judges at the U.S. Court of Appeals for the District of Columbia Circuit shot down those arguments. “To require absolute scientific certainty as to what will happen upon every individual release of a dangerous chemical would have been to legislatively paralyze CERCLA,” Judge Patricia Millett wrote in Tuesday’s opinion.
The EPA’s designation of PFOA and PFOS as hazardous substances created anxiety for chemical companies and so-called “passive receivers” like landfills and wastewater treatment plants, who worried they could be on the hook for cleaning up a widespread chemical.
The EPA has said it will not pursue municipal waste sites, farmers or local fire departments or airports for enforcement.
But Daryl Joseffer, president of the litigation center at the U.S. Chamber of Commerce, said in an email after the decision that the EPA failed to consider the costs and consequences of the “hazardous substance” designation, which he argued would cause local governments and businesses to put resources into legal battles.
“EPA’s failure to consider costs and consequences, as required by law, produced a deeply flawed rule that is more likely to spawn unnecessary, costly litigation than to drive expeditious, effective cleanup focused on actual risk,” Joseffer said.
Industry groups that sued the EPA said companies have already seen increased expenses related to the designation.
But for communities that have been pushing for industries to clean up PFAS contamination, that’s a welcome change.
Emily Donovan, a co-founder of Clean Cape Fear, an advocacy group pushing for the cleanup of a Chemours site in North Carolina, called the decision a “common-sense and moral victory.”
“The land belongs to the people and PFAS polluters must pay when they poison sacred resources like our water, air, soil and food supplies. The court agreed unanimously,” Donovan said.
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