After much anticipation and several months of evaluation, the Environmental Protection Agency (EPA) has decided to keep the landmark Biden-era rule extending Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) liability to certain per- and polyfluoroalkyl substances (PFAS)—otherwise known as “forever chemicals.” This announcement comes amid an industry lawsuit challenging the rule, which has been stayed for months while the Trump Administration’s EPA reconsidered whether it wanted to continue defending the designation.
What are the relevant PFAS?
PFAS are synthetic chemicals used in many products and materials by a broad range of industries—from cosmetics to textiles—because they resist heat, water, and oil. Given their widespread use, these chemicals are relatively ubiquitous at low levels and have been detected in soil, sediments, groundwater, and surface water at many sites. The EPA rule at issue focuses on two PFAS specifically, PFOA and PFOS, given their widespread use and prevalence in the environment.
What does the rule do?
The EPA’s April 2024 rule designates PFOA and PFOS as “hazardous substances” under CERCLA. The rule establishes substantial reporting requirements for PFOA and PFOS releases, allows the EPA to initiate response actions without showing imminent and substantial endangerment, and perhaps most importantly, allows parties to pursue reimbursement or contribution claims for cleanups of these two substances. CERCLA’s strict, joint and several, and retroactive liability regime is particularly concerning in the context of chemicals like PFOA and PFOS that are ubiquitous in the environment and resistant to degradation.
More details on the rule’s specific requirements can be found in analysis from the Alston & Bird team here and here.
What’s the rule’s current status?
After the rule went into effect in July 2024, the U.S. Chamber of Commerce and industry groups petitioned for review by the D.C. Circuit Court of Appeals, arguing in part that the agency had wrongly applied CERCLA and did not adequately assess the costs and benefits extending Superfund liability to PFAS contamination. With the Trump Administration’s arrival, the EPA moved for a stay in February 2025, and the case has been paused since then while the agency decided whether to continue defending the rule.
In its September 17 motion this week, the EPA asked the court to lift the stay. Attached to the motion was a declaration from a senior adviser to the EPA’s Office of Land and Emergency Management stating that the agency will continue to “engage with Congress and industry to establish a clear liability framework that ensures the polluter pays and passive receivers are protected.” This goal of protecting so-called “passive receivers” raises significant questions, including the criteria for determining which entities qualify, the scope of protections provided, and the potential of unintended consequences on enforcement actions and cost allocations at sites where these entities are involved. The EPA has indicated that Congress will have to adopt new statutory language to address concerns with passive receiver liability.
The decision to retain the PFAS Superfund rule contrasts with other Trump Administration actions to relax PFAS regulations under the Safe Drinking Water Act and push back compliance deadlines under similar legislation.
Next Steps
As litigation against the rule proceeds, companies and stakeholders should follow developments both at the congressional and EPA levels, where prominent leaders in both branches have supported measures to keep the rule but excuse so-called “passive receivers” from liability. For now, companies should be aware of potential releases of PFAS—especially PFOA and PFOS—in their waste streams, be mindful of potential PFAS contamination during environmental due diligence for transactions, and stay informed on potential liability that may arise from real property investments.
Alston & Bird continues to track ongoing litigation, legislative actions, and regulatory shifts in the evolving PFAS landscape and potential implications for Superfund liability and cost recovery. To stay on top of these developments, please visit our PFAS Primer or contact an attorney on our PFAS Team or Contaminated Sites Team.
If you have any questions, or would like additional information, please contact one of the attorneys on our Environment, Land Use & Natural Resources team.
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