An appeals court on Tuesday upheld the U.S. Environmental Protection Agency's 2024 decision to designate some "forever chemicals" as hazardous substances, keeping the companies that make or transport the chemicals on the hook for potential cleanup costs in the future.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled that the EPA acted reasonably and was within its authority to designate the chemicals as “hazardous” in the last year of President Joe Biden’s administration. The court rejected a challenge by seven business groups, including the U.S. Chamber of Commerce and groups representing waste management and chemical industries.
The EPA issued a rule in 2024 that designated a pair of widely used industrial chemicals as hazardous substances under the country's Superfund program, part of a crackdown on toxic compounds known as per- and polyfluoroalkyl substances (PFAS) or "forever chemicals."
PFAS are a family of thousands of chemicals used in consumer and commercial products like firefighting foams, nonstick pans and stain resistant fabrics. They have been linked to cancer and other health concerns, and are often called forever chemicals because they do not easily break down in the human body or the environment.
The 2024 rule allows the government to bill polluters for cleanup costs related to two of the most commonly used PFAS chemicals, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). The two chemicals had previously been designated as "pollutants or contaminants,” which would have meant that any federal cleanup effort would have to be paid for by public funds.
The industry groups that challenged the rule had argued that the EPA had failed to properly consider the rule’s “enormous costs” for businesses. They argued that the rule “warps EPA’s incentives” by encouraging it to undertake expensive cleanup efforts and passing the bill onto private companies.
The D.C. Circuit rejected those arguments, saying that passing costs onto polluters was the “core purposes” of the Comprehensive Environmental Response, Compensation, and Liability Act, also known as the Superfund law.
“The designation shifts the burden to the very private parties that deposit hazardous substances at the site, rather than allowing those parties to spread these two forever chemicals and expect taxpayers to clean up after them,” U.S. Circuit Judge Patricia Millett wrote for the panel.
Earthjustice, an advocacy group that intervened in the lawsuit to support the EPA’s rule, said Tuesday that the decision was a major win for communities contaminated by PFAS pollution.
“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,” Earthjustice senior attorney Jonathan Kalmuss-Katz said in a statement.
The case is Chamber of Commerce v. U.S. Environmental Protection Agency, U.S. Court of Appeals for the District of Columbia Circuit, No. 24-1193
For the petitioners: Elbert Lin of Hunton Andrews Kurth
For the EPA: Riley Walters and Jin Hyung Lee of the U.S. Department of Justice
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US designates PFAS chemicals as Superfund hazardous substances
