EPA vs. Industry: Showdown Over PFAS
Kevin Tahara
PFAS (Per- and Polyfluoroalkyl substances) are a new frontier in environmental and regulatory law that will test the EPA’s administrative procedures. PFAS are manufactured chemicals that have been widely used since the 1940s in industrial and consumer products[1]. Nicknamed “forever chemicals,”[2] PFAS are known for their longevity in the environment and have become a widespread health concern within the last couple of years.[3]
On May 8, 2024, President Biden’s EPA took a major step towards reducing the amount of PFAS contamination in the environment by listing two of the most infamous PFAS (perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)) as hazardous substances under section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), colloquially known as the “Superfund” law.[4] Under a totality of the circumstances, the EPA found that these PFAS “may present substantial danger to public health or welfare or the environment” under 42 U.S.C. § 9602(a). [5] By designating PFAS under CERCLA, the EPA is better able to manage the cleanup of PFAS contamination by no longer requiring a finding of “imminent and substantial danger” prior to initiating a cleanup project and holding the polluters financially responsible.[6]
This designation and its administrative ramifications quickly spurred a legal response from impacted economic sectors. In the summer of 2024, industrial and commercial groups headed by the US Chamber of Commerce (COC) challenged the designation of PFAS in the D.C. Court of Appeals[7] on the grounds that the section 102(a) designation did not meet legal or scientific standards.[8] Specifically, the appellant raised three main points of contention: 1) that the EPA did not set applicable limits when determining thresholds for what constitutes “may present substantial danger,” 2) that the EPA did not adequately consider costs before implementing the designation, and 3) that the EPA’s ability to use CERCLA to regulate PFAS using a list of non-exhaustive factors in an unclear manner is arbitrary and capricious. [9]
The appellant begins their argument by exploring the administrative history of the EPA’s definition of “may present substantial danger” that dates to a 1983 Advance Notice of Proposed Rulemaking on how to implement designations of “hazardous substances” under section 102(a).[10] Under this notice, the EPA proposed possible quantitative thresholds and the consideration of costs when determining designations.[11] However, the EPA did not adopt these considerations in the 2024 final designation.[12]
The appellant then accuses the EPA of using carte blanche nebulous weighting of criteria and additional information under an “including but not limited to” umbrella when determining the “‘potential harm to humans or the environment from exposure’ and ‘environmental fate and transport’ (i.e., how the substance moves and changes in the environment).”[13] The appellant contests the lack of fixed boundaries in defining “may present substantial danger” by citing to the recent Loper Bright[14] decision and the need for “fixed boundaries.”[15] The appellant specifically contests the supposed liberal use of “may” to mean any “possibility” of substantial danger. This allows the EPA to consider wide ranges of information at the EPA’s exclusive discretion, such as potentially tenuous “associations” with “adverse” health effects.[16]
The appellant also decries the methodology and results of the EPA’s totality of the circumstances expenses calculations related to the cleanup of PFOS and PFOA.[17] Under Michigan v. EPA, 576 U.S. 743, 752 (2015), the appellant claims that EPA when determining designation under section 102 “as may be appropriate” must include consideration costs, and that the disclosure of the analysis of costs in an analysis document not made available for public comment violated the Administrative Procedure Act.[18] Additionally, the appellant contests that the EPA underestimated some costs, ignored other costs, and misreported some costs as benefits, all as part of an arbitrary and capricious determination of costs.[19] Finally, the appellant cites to errors in the final EPA decision document’s cost analysis as grounds to vacate the EPA’s decision document or risk approval under an arbitrary and capricious process.[20]
In addition to the appellant, an amici curiae was filed by a consortium of water related associations and meat producer associations also taking the stance that the EPA had made significant errors and that the listing determination should be vacated.[21] These associations represent “passive receivers” who provide water, sewage services, and food to the public, whose services foreseeably are contaminated by PFAS chemicals, and who could be forced to become involved in costly cleanup. [22] The amici members worry that they would be on the hook for costly cleanup in the common instances when the primary polluter is not available to pay. [23] They asked the court to find the EPA’s determination process to be arbitrary and capricious because it abandons CERCLA’s “polluter pay” model and because of the EPA’s decision to label litigation costs and cleanup liability for passive receivers as unknown “indirect” costs.[24]
The EPA on the other hand contests the appellants’ claims and maintains that they have the legal authority to make the determination of PFOS and PFOA as hazardous materials.[25] Additionally, the EPA states that they will continue to work with Congress and stakeholders to create liability frameworks that protect passive receivers. [26]
While the initial filings to the court were submitted in 2024, the federal government administration changed hands in January 2025, and the EPA requested a hold on the litigation to give agency leadership the opportunity to decide how to proceed.[27] The hold was granted in February 2025 and was extended four times through August 2025.[28] In September 2025, the DOJ filed a motion on behalf of the EPA to lift the hold and restart proceedings with the court, signaling the EPA’s intent to stand by the hazardous substance designation decision. As of the writing of this blog post, the most recent movement in this case was on October 2, 2025 when the court set the deadline for final briefs as December 5, 2025.
[1] Our Current Understanding of the Human Health and Environmental Risks of PFAS, U.S. Env’t Prot. Agency, https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas (Nov. 26, 2024).
[2] “Forever Chemicals” Called PFAS Show Up in Your Food, Clothes, and Home, NRDC, https://www.nrdc.org/stories/forever-chemicals-called-pfas-show-your-food-clothes-and-home (Sep. 18, 2025).
[3] Id.
[4] Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances, 89 Fed. Reg. 39124, 39124 (May 8, 2024) (to be codified at 40 CFR 302).
[5] Brief for U.S. Environmental Protection Agency at 2, Chamber of Com. v. United States Env’t Prot. Agency, No. 24-1193 (App. D.C. Jan. 17, 2025) (consolidated with Nos. 24-1261, 24-1266, 24-1271, and 24-1272)
[6] Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances, supra note 4, at 39125; What does the EPA’s new hazardous substances designation for two ‘forever chemicals’ mean?, EWG, https://www.ewg.org/news-insights/news/2024/04/what-does-epas-new-hazardous-substances-designation-two-forever (Apr. 17, 2024).
[7] Declaration of John Evans, Chamber of Com. v. United States Env’t Prot. Agency, No. 24-1193 (App. D.C. Sep. 17, 2025) (consolidated with Nos. 24-1261, 24-1266, 24-1271, and 24-1272).
[8] John D. Eagle & Emma Fuchs, The Future of EPA’s CERCLA PFAS Hazardous Substance Designation, Thompson Hine: Insights, https://www.thompsonhine.com/insights/the-future-of-epas-cercla-pfas-hazardous-substance-designation/ (Oct. 16, 2025).
[9] Opening Brief for Petitioners at 10, Chamber of Com. v. United States Env’t Prot. Agency, No. 24-1193 (App. D.C. Nov. 4, 2024) (consolidated with Nos. 24-1261, 24-1266, 24-1271, and 24-1272).
[10] Id. at 10.
[11] Id.
[12] Id. at 11,15.
[13] Id. at 16-17
[14] Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).
[15] Opening Brief for Petitioners, supra note 9, at 10-11
[16] Id. at 11-13.
[17] Id. at 18-21.
[18] Id. at 20.
[19] Id. at 20-21.
[20] Id. at 31-32.
[21] Brief for Passive Receivers as Amici Curiae in Support of Remand at 4-9, Chamber of Com. v. United States Env’t Prot. Agency, No. 24-1193 (App. D.C. Nov. 12, 2024).
[22] Id. at 1.
[23] Id. at 10-11.
[24] Id. at 11.
[25] Brief for U.S. Environmental Protection Agency, Chamber of Com. v. United States Env’t Prot. Agency, supra note 5, at 2.
[26] Declaration of John Evans, supra note 7, at 3.
[27] Id. at 2.
[28] Id.