The Environmental Protection Agency (“EPA”) told a federal appeals court that it intends to retain the Biden-era rule that designates two PFAS as “hazardous substances” under the Comprehensive Environmental Response, Compensation & Liability Act (“CERCLA”), pursuant to a filing made by the EPA on September 17. This comes after months of review after the court in Chamber of Commerce of the United States v. U.S. Environmental Protection Agency granted EPA’s motion to hold the case in abeyance pending new EPA leadership review of the rule. It was uncertain where the current EPA would land on the matter, with some reports saying that a top EPA official had advocated for the EPA to oppose the rule.
The Biden-era rule went into effect July 8, 2024, and designated Perfluorooctanoic Acid (PFOA) and Perfluerooctane sulfonic Acid (PFOS) as CERCLA hazardous substances. CERCLA, commonly known as Superfund, imposes strict liability on releases or threatened releases of hazardous substances that may endanger public health or the environment. This means that the federal government has authority to require remedial response actions for PFOA and PFOS contamination, among a host of other hazardous substances. EPA Director lee Zeldin stated in a press release on September 17 that the EPA has “heard loud and clear from the American people, from Congress, and from local municipalities about this particular issue” and that “[w]hen it comes to PFOA and PFOS contamination, holding polluters accountable while providing certainty for passive receivers that did not manufacture or generate those chemicals continues to be an ongoing challenge.”
The EPA’s September 17 filing can be accessed here: https://insideepa.com/sites/insideepa.com/files/documents/2025/sep/epa2025_1662a.pdf
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