Till Waste Do Us Part? EPA Says "I Do" to Biden-Era PFAS "Forever Chemicals" Rule (For Now)
In May 2024, the EPA issued a final rule designating Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS), two substances under the PFAS umbrella, as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substances.
EPA determined that PFOA and PFOS “may present substantial danger to public health or welfare or the environment” when released into the environment after considering the available scientific and technical information. For example, EPA considered that human exposure to PFOA and/or PFOS may be linked to various adverse health effects, including immune effects (e.g., antibody production and immunity), developmental effects to fetuses during pregnancy or to infants (e.g., low birth weight, accelerated puberty, skeletal variations), and liver effects (e.g., tissue damage). EPA also considered its prior toxicity risk assessment of PFOA and PFOS in the drinking water context, highlighting studies that concluded PFOA and/or PFOS may cause carcinogenic effects in humans and animals. Additionally, EPA noted that the potential health and environmental risks associated with PFOA and PFOS are compounded by the very nature of the substances—these "forever chemicals" are highly resistant to breaking down in the environment and can readily move through soil and water once released.
The designation of these chemicals as hazardous substances was "on the rocks" after President Trump's election, and many wondered if the Administration would "divorce" itself from the rulemaking given the President's executive orders emphasizing regulatory rollback and requiring agencies to consider costs associated with their regulations. Nevertheless, on September 17, 2025, EPA announced its intention to retain the rule.
In 1980, Congress established CERCLA (the "Superfund" statute) to ensure that contaminated property is remediated and that those remediation costs are efficiently allocated to responsible parties. In other words, CERCLA's end goal was to shift the cost of remediation from the public to polluters at "fault" for the contamination, reflecting a "polluter pays" public policy goal. CERCLA, however, is not "regulatory" or "preventative" in the same sense as other environmental statutes; rather, CERCLA is typically "enforced" retroactively (i.e., after contamination has already occurred), through the EPA’s authority to demand cleanup or undertake a cleanup. In the event EPA undertakes cleanup efforts, it also has the authority to demand reimbursement from responsible parties.
CERCLA, however, does contain a regulatory requirement that releases into the environment of hazardous substances above an assigned threshold or "reportable quantity" be reported. The purpose of this requirement is to inform the government of a release "so that the need for response can be evaluated and any necessary response [is] undertaken in a timely fashion." 48 Fed. Reg. 23552, 23553 (May 25, 1983). To that end, this reporting requirement alerts EPA of releases of hazardous substances that may threaten the environment or public health, and which may warrant immediate remedial action by the responsible party or the EPA. Additionally, many states have incorporated CERCLA's hazardous substances and reportable quantities into their state-level release reporting regulations, such as Louisiana (incorporating by reference CERCLA's reportable quantities), Florida (defining reportable quantity as the amount sets forth in CERCLA's implementing regulations), and Illinois (noting that the reportable quantity varies depending upon the substance involved and is determined under CERCLA's implementing regulations).
Chemicals listed as hazardous substances under CERCLA occur in two contexts. First, if a chemical is designated for regulation under a different environmental law—such as the Clean Air Act—then it is automatically defined as a hazardous substance. There are over 800 substances listed in this manner as hazardous substances, including lead, epinephrine, chromium, and nitric acid. Alternatively, CERCLA grants EPA the authority to "promulgate and revise as may be appropriate, regulations designating as hazardous substances … such elements, compounds, mixtures, solutions, and substances which, when released into the environment may present substantial danger to the public health or welfare or the environment.” 42 U.S.C. § 9602(a).
EPA’s designation of PFOA and PFOS as hazardous substances in May 2024 was the very first time EPA relied on this authority and designated hazardous substances through this second mechanism.
Despite EPA's decision to retain the designation, the agency was also critical of the alleged "failure" of the previous administration to provide the "rules of the road" (i.e., the criteria for designating a substance as hazardous) prior to designating. To that end, EPA noted it intends to develop a CERCLA Framework Rule; this Framework Rule will provide a uniform approach to guide future hazardous substance designations, including how the agency will consider the costs of proposed designations.
Ultimately, while EPA has said "I do" to the rule for now, the agency appears to have left the door open for future changes, noting that it will continue to collect information on the rule’s costs and benefits. Moreover, EPA's response to this PFAS rule is consistent to the agency's overall approach to other Biden-ERA PFAS rules: signaling conditional support for the rules while scrutinizing the costs of compliance. For example, in May 2025, the agency announced it will keep the newly established National Primary Drinking Water Regulations (NPDWR) for PFOA and PFOS but will extend compliance deadlines and establish an exemption framework.
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