A federal appeals court has allowed the Environmental Protection Agency to keep two widely known PFAS compounds on the list of hazardous substances covered by the federal Superfund statute, marking an important court victory for the agency.
As a result, companies connected to PFAS pollution can still be pushed to contribute to cleanup bills.
Here's what to know
Industry challengers, including the National Waste & Recycling Association and the U.S. Chamber of Commerce, failed to overturn the EPA's 2024 Comprehensive Environmental Response, Compensation, and Liability Act designation of PFOA and PFOS, Waste Dive reported after Aug. 18's ruling from the D.C. Circuit Court of Appeals.
In their case, the petitioners said the agency rushed the rule, did not allow enough time for public input, and used a cost-benefit analysis that understated both cleanup expenses and the burden on smaller companies.
The court's three-judge panel disagreed, saying the EPA had made a "reasoned decision." In reaching that conclusion, the judges highlighted the agency's detailed record on the chemicals' possible health effects, including "decreased infant birth weight and effects on fetuses during pregnancy," as well as effects on the cardiovascular system, liver, and immune system.
Judges also rejected the argument that the rulemaking process shut industry groups out, writing that petitioners received "ample notice and opportunity to be heard through the notice and comment rulemaking process."
TCD Picks » Quince Spotlight
💡These best-sellers from Quince deliver affordable, sustainable luxury for all
More background
Because PFAS can persist in the environment for long periods and are expensive to remove, a hazardous-substance listing can have major consequences for who ends up paying when land or water is contaminated.
Waste-sector groups have long argued that landfill operators and similar facilities are "passive receivers" that manage PFAS-containing materials without having made the chemicals themselves. They warn that broad liability could bring lawsuits, increase operating costs, and create incentives to reject certain waste streams.
The panel was unpersuaded, writing that petitioners "have come forward with no evidence that those responsible for the presence of hazardous substances at a site have been unfairly saddled with liability or that the statute's operation has hamstrung industry."
The rule stayed in effect throughout the court fight, so the decision does not alter current enforcement. It does, however, reinforce the government's position going forward. The designation originated during the Biden administration, and the EPA under the Trump administration continued to defend it.
What's being done?
Business groups are still expected to look to Congress for protection. The National Waste & Recycling Association has been seeking a Comprehensive Environmental Response, Compensation, and Liability Act exemption since at least 2022, saying waste and recycling companies should not be treated like the firms that originally put PFAS into commerce.
One current example is an amendment from Senator Pete Ricketts of Nebraska to the fiscal year 2027 National Defense Authorization Act. The proposal would exempt certain "resource management entities" from liability tied to PFAS releases at sites such as solid waste management and wastewater facilities.
The EPA says the designation is intended to make polluters pay and that the agency does not plan to pursue enforcement against some categories of landfills. Even so, that assurance only goes so far when private litigation enters the picture.
Waste Dive reported that Taryn McKnight, vice president of product of environmental testing company Eurofins, said, "Only Congress has that authority, and Congress has been debating for years whether to provide waivers to passive receivers."
For now, attention turns to Congress.
"With this decision now, with the courts denying the petitioners' request to review or overturn this ruling, that does put the pressure on Congress to make a decision and potentially provide those waivers," McKnight said.
Get TCD's free newsletters for easy tips, smart advice, and a chance to earn $5,000 toward home upgrades. To see more stories like this one, change your Google preferences here.
