CERCLA's PFAS Designation:
A Game-Changer for Environmental Liability

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) has entered a new era with the U.S. Environmental Protection Agency’s (EPA) recent designation of certain per- and polyfluoroalkyl substances (PFAS), or “forever chemicals,” as hazardous substances. Announced on April 19, 2024, and entered into force on July 8, 2024, this designation represents a shift in the environmental law landscape.

In 1980, Congress established CERCLA, also known as “Superfund,” which effectively revolutionized hazardous waste cleanup in the United States. It emerged as a direct response to environmental disasters from the 1970s, like the infamous Love Canal, where communities faced severe health risks from toxic waste contamination.¹ CERCLA not only implements a tax to fund cleanup efforts for uncontrolled and abandoned waste sites, accidents, spills, and other emergency releases of hazardous substances, but also imposes a “polluter pays” principle to identify responsible parties, allocate liability, and finance cleanup operations.²

The designation of PFOA and PFOS as hazardous substances marks the first time the EPA has designated new chemicals as hazardous substances under CERCLA since the law’s enactment.³ In determining what constitutes a “hazardous substance,” CERCLA does not use a one-size-fits-all definition. Instead, CERCLA refers to a comprehensive network of definitions incorporated and referenced within other environmental laws, including the Clean Water Act (CWA), the Clean Air Act (CAA), the Resource Conservation and Recovery Act (RCRA), and the Toxic Substances Control Act (TSCA). In fact, nearly all CERCLA hazardous substances are automatically incorporated through these environmental statutes, despite the EPA retaining authority to designate substances as hazardous itself solely under CERCLA.⁴ Thus, the EPA’s use of their authority to designate these PFAS as hazardous substances under CERCLA is monumental in environmental regulatory history.

Designating PFAS as hazardous substances under CERCLA not only allows EPA to address PFAS contamination, but it also triggers immediate and far-reaching implications for industry actors. In an agency memorandum, the EPA made clear that it will focus enforcement on responsible parties who significantly contributed to PFAS contamination, including: (1) PFAS manufacturers; (2) companies that used PFAS; (3) federal facilities; and (4) other industrial parties.⁵ However, the memorandum stated that the EPA does not intend to pursue entities where equitable factors do not support it, such as: (1) community water systems; (2) publicly owned treatment works (POTWs); (3) municipal storm sewer systems; (4) public landfills; (5) public airports; and (6) local fire departments.⁶ As a result, the industries most directly impacted include: (1) chemical manufacturers; (2) textile producers; (3) paper and packaging companies; (4) firefighting foam manufacturers and users; and (5) waste management facilities. These businesses must now evaluate their historical operations, conduct thorough site assessments, and potentially establish financial reserves for future liability.⁷ They must also now report releases of PFAS compounds that exceed reportable quantities, failing to do so could result in substantial penalties.⁸

Additionally, the designation's retroactive nature means that historic PFAS contamination now falls under CERCLA's purview, which affects not only current property owners and operators but also previous owners and waste generators who may have handled these substances decades ago.⁹

In response to these new requirements, industrial organizations have been expressing their discontent. Recently, organizations petitioned the US Court of Appeals for the D.C. Circuit seeking review of the EPA’s designation.¹⁰ The industrial actors challenged the rule under the arbitrary and capricious standard— a legal standard of judicial review for courts to use to evaluate the actions of administrative agencies.¹¹ They also asserted that the EPA incorrectly interpreted CERCLA in its determination of hazardous substances and whether a substance may present a substantial danger to public health, welfare, or the environment.¹² Litigation is currently ongoing; as of November 2024, industry groups, environmental organizations, and others have filed amicus briefs supporting their stances on the issue.

In conclusion, the EPA's designation of PFAS as hazardous substances under CERCLA represents a historic shift in environmental regulation. While legal challenges persist and industries adapt to new compliance requirements, this unprecedented action addressing forever chemicals may pave the way for future environmental protections.

¹ Love Canal Niagara Falls, Env’t Prot. Agency, (last visited Dec. 6, 2024).
² Superfund: CERCLA Overview, Env’t Prot. Agency (Oct. 8, 2024). (last visited Dec. 6, 2024).
³ Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances: Rule History, Env’t Prot. Agency, (last visited Jan. 1, 2025).
⁴ 42 U.S.C. § 9602.
⁵ Memorandum: Interim PFAS Enforcement Discretion and Settlement Policy Under CERCLA, Env’t Prot. Agency, (Apr. 2024).
⁶ Id.
⁷ Emergency Release Notification Requirements for PFOA and PFOS Designated as CERCLA Hazardous Substances, Env’t Prot. Agency, (last visited Jan. 1, 2025).
⁸ 40 CFR 302.6.
⁹ FAQs for Release Reporting Requirements: Final Rule Designating PFOA & PFOS as Hazardous Substances, Env’t Prot. Agency, (last visited Jan. 1, 2025).
¹⁰ Non-Binding Statement of Issues, Chamber of Commerce of the USA, et al, v. U.S. EPA, et al., No. 24-1193, Doc. No. 2064411, (D.C. Cir. Jul 12, 2024).
¹¹ Id.
¹² Id.