D.C. Circuit Upholds PFAS Designation Under CERCLA
The U.S. Court of Appeals for the D.C. Circuit recently upheld the U.S. Environmental Protection Agency’s designation of PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund.
The court rejected a challenge brought by industry groups and upheld EPA’s 2024 designation, finding that the agency sufficiently justified its decision and provided adequate opportunity for public comment. The designation remains in effect, potentially exposing entities that handle PFOA and PFOS to CERCLA’s broad liability framework.
For drinking water utilities, the decision renews questions about how CERCLA liability could affect systems that do not manufacture or produce PFAS, but instead encounter and remove the chemicals from water.
The American Water Works Association (AWWA) raised this concern following the ruling, calling for Congress to provide water and wastewater utilities with a statutory exemption from CERCLA liability.
The Water & Health Advisory Council raised similar concerns before EPA finalized the designation. In comments to EPA, the Council cautioned that water and wastewater systems could face cleanup, remediation and disposal costs that compete with resources needed to address other drinking water risks. The Council called for a science-based, risk-informed approach that considers both public health benefits and potential unintended consequences.
Council member Manny Teodoro sees that concern as particularly important for smaller systems. He noted that potential CERCLA legal costs and liability would come in addition to the costs utilities already face to remove PFAS, potentially competing with other utility priorities and exacerbating existing inequities among systems with different levels of capacity.
Council member Janet Anderson also points to an important distinction in what the designation changes. PFAS could already be addressed as “pollutants or contaminants” under CERCLA, giving EPA and states authority to require investigation and remediation in certain circumstances. Formally listing PFOA and PFOS as hazardous substances adds requirements, including reporting requirements for qualifying releases.
The court’s decision resolves the current legal challenge, but it does not end the broader policy discussion. Questions remain about how liability should apply to utilities and other entities that receive PFAS rather than manufacture it, and whether Congress should provide additional protections for these “passive receivers.”
As that discussion continues, the Council believes drinking water policy should remain grounded in science and consider the full range of risks facing water systems. Addressing PFAS is an important public health objective, but how it is addressed matters. Policies should help systems reduce risk effectively while preserving their ability to provide safe, affordable and reliable drinking water.