On September 17, 2025, the U.S. Department of Justice submitted a court filing on behalf of EPA as part of ongoing litigation related to the designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) hazardous substances.
In the Wednesday court filing, the EPA said it “has reviewed the underlying rule and has decided to keep the rule in place.” That is, the agency is currently retaining the rule that became effective on July 8, 2024.
That is, at this time, EPA is retaining the Superfund) hazardous substance designation for PFOA and PFOS and announced it will be initiating future rulemaking to establish a uniform framework governing designation of hazardous substances under section 102(a) of CERCLA moving forward.
CERCLA imposes broad, retroactive, and potentially costly strict liability on those who release hazardous substances to the environment. This liability can attach to entities that did not manufacture or generate the substance but received it in real estate purchases, feedstocks, products, or waste. Such entities are sometimes referred to as “passive receivers.”
As the agency implements the 2024 rule, EPA will continue to collect information on its costs and benefits. The best, most enduring solution to this issue is a statutory fix to protect passive receivers from liability, which EPA would follow to the letter of the law.
This subject is not easy. We blogged PFOA and PFOS Now Hazardous Substances Under Superfund Law, where we pointed out, “this is a true bete noire where a peer reviewed 2020 study cited approvingly by the EPA describes 99.7% of Americans having detectable PFAS in their blood!” That is, PFAS is so widespread, okay, locking the barn door after the cow has bolted, the solutions are hard to find.
Similarly, we blogged approvingly some weeks ago, EPA Will Keep Current Limits for “Forever Chemicals” in Drinking Water.
On a related, but different matter, while the text is not yet available, currently under review at the Office of Management and Budget is a draft proposed rule that could dramatically reduce the scope of the PFAS reporting rule under Section 8(a)(7) of TSCA.
With respect to this action, the court filing also indicates the court case, filed in the U.S. Court of Appeals for the D.C. Circuit, will now continue, with a tentative new hearing schedule due on September 30.
This act of retaining the current rule is not an abdication of responsibility, but rather a recognition that effective environmental governance depends on both the right ends and the right means. Environmental public policy is hard.
This post was updated on September 18, 2025.
