Court Weighs Suit Challenging EPA’s Regulation of Common Manufacturing Compounds

Equipment used to test for perfluoroalkyl and polyfluoroalkyl substances, known collectively as PFAS, in drinking water is seen at Trident Laboratories in Holland, Mich., on June 18, 2018. (Cory Morse/The Grand Rapids Press via AP)

The U.S. District Court for the District of Columbia has set a July 29 deadline for arguments in determining if a lawsuit challenging the U.S. Environmental Protection Agency’s (EPA) “hazardous” classification for two pre/polyfluoroalkyl substances (PFAS) should proceed.

The case seeks to stymie the EPA’s expanding regulatory scrutiny on PFAS before more of the 14,000 chemicals used in thousands of domestic products are red-flagged as hazardous substances, imposing costly uncertainties on manufacturers, utilities, and supply chains.

The court issued the deadline in response to the July 12 petition from the U.S. Chamber of Commerce, Associated General Contractors of America, and National Waste & Recycling Association, listing six issues they want addressed by the justices in allowing their June 10 lawsuit to be heard.

The petition asks if the EPA’s April 17 order incorrectly interpreted the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), when it defined PFAS chemicals perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) as “hazardous substances.” CERCLA, or Superfund, is a law that provides federal authority and funding to clean up hazardous waste sites, according to the EPA.

It’s the first time the EPA has issued such a designation under CERCLA, the petition notes, and claims the rule typifies the agency’s expansive regulatory license since the October 2021 launch of its PFAS Strategic Roadmap using “a lifecycle approach” to addressing “forever chemicals.”

PFAS, which include 14,000 synthetic fluorocarbons used in manufacturing since the 1950s, were largely unregulated until the 21st century. Over the last decade, however, they’ve drawn increasing attention from regulators and lawmakers.

A 2007 National Health and Nutrition Examination Survey showed that 98 percent of Americans have detectable levels of PFAS in their blood. A 2022 Waterkeeper Alliance analysis of 114 waterways found that 83 percent contained PFAS.

During 2024 legislative sessions alone, lawmakers in 36 states considered 450 PFAS-related bills, according to Safer States’ 2024 “Analysis of State Legislation Addressing Toxic Chemicals and Plastics.”

Congress has introduced dozens of bills to monitor PFAS, ban non-essential uses, and address “legacy” contamination, including H.R. 8074, ‘The Forever Chemical Regulation and Accountability Act of 2024,’ filed in April by Reps. Betty McCollum (D-Minn.) and Chellie Pingree (D-Maine). Few have advanced.

The EPA since 2021 has pushed PFAS phase-out through rule-making. In April 2024, it posted its first-ever rule regulating tap-water levels of six PFAS chemicals, including PFOS and PFOA.

That rule, which formally went into effect on July 8, is also being challenged in a D.C. U.S. District Court lawsuit filed by industry groups and utilities that also claim the EPA exceeded its regulatory authority.

The American Water Works Association, a litigant, estimates compliance with the newly enacted regulation will “exceed $2.5 to $3.2 billion annually.”

The American Water Works Company estimates the national cost to install treatment facilities and processes to remove PFOS and PFOA would cost utilities $47 billion upfront.

Among criticisms documented by the American Chemistry Association, is the Greater North Dakota Chamber’s objection that the regulation could raise water bills in “households in our communities by as much as $1,000 per month.”

Too Big to Regulate

Like the suit challenging the water rule, the case against the EPA counting PFOS and PFOA among more than 800 “hazardous substances” also cites agency overreach and is among six questions petitioners pose in advancing their legal challenge.

PFAS has been found in food before. The U.S. Food and Drug Administration in 2019 reported PFAS in several types of food, including meats, seafood, and grocery store chocolate cake. (Shutterstock)

In addition to determining if the EPA “erroneously interpreted CERCLA,” the petition requests justices consider if it provided adequate notice to comment before positing the final rule across eight-and-a-half pages of the May 8 Federal Register.

By incorporating CERCLA, the petition states, the EPA said those responsible can now be held accountable for cleaning PFAS. This could violate the U.S. Constitution “by, for example, imposing retroactive liability” on manufacturers, retailers, and users of the chemicals.

The petition also asks justices to ponder if the EPA must consider costs in designating a substance as hazardous, if it adequately explained its conclusion, and if it “acted arbitrarily, capriciously, or in a manner otherwise contrary to law” in adopting the rule.

Industry associations have lobbied Congress for CERCLA PFAS exemptions since 2022. Groups represented by the U.S. Chamber of Commerce, Associated General Contractors of America, and National Waste & Recycling Association (NWRA) argue in their June 10 lawsuit that they are passive receivers that do not generate the chemicals or have control over PFAS-containing items and, as such, should be exempt.

NWRA and others say vague wording could force landfills to reject PFAS-containing material, which would incur significant sorting and processing costs and risk of PFAS-related lawsuits.

The EPA’s enforcement discretion policy in reference to the rule states that the agency does not intend to pursue entities “where equitable factors do not support seeking response actions or costs under CERCLA,” including farmers, municipal landfills, water utilities, municipal airports, and local fire departments.

The Associated General Contractors of America, which represents 28,000 contractors, construction service providers, and suppliers, said in a June 13 statement that the rule “imposes significant financial and legal burdens on contractors and could lead to costly litigation and stricter waste disposal practices.”

The association has “serious concerns about the EPA’s decision to use a novel CERCLA hazardous-substance designation for this purpose – exposing contractors to significant risk and liability across their project portfolios.”

The Chamber of Commerce, in its April 2024 response and those since, insists the EPA’s “CERCLA designation appears to prioritize creating new opportunities for litigation” and will deprive local governments, landowners, and businesses of “resources that could have been used to improve our environment to fighting frivolous litigation.”

The Chamber of Commerce argues the EPA has all the regulatory authority it needs without CERCLA, as outlined in its November 2022 “Existing Cleanup Authorities and Alternatives to CERCLA” report.

Community and environmental groups such as Clean Cape Fear, the Environmental Justice Task Force, Fight for Zero, Merrimack Citizens for Clean Water, and the Natural Resources Defense Council lodged a 28-page motion on July 10 to intervene on behalf of the EPA.

Represented by Earthjustice attorneys, they argue in their filing that the hazardous substance designation is critical to helping communities affected by health issues caused by PFAS contamination accelerate cleanups.

The CERCLA designation ensures timely cleanup paid for by polluters instead of taxpayers, they said in the motion, noting that, “Historically, the communities most burdened by PFAS contamination have often borne the costs of PFAS remediation as well, resulting in increased water rates and depleted local and state government budgets.”

A USGS scientist wearing black gloves is collecting a sample of tap water from the kitchen sink using small plastic vials to test for PFAS. (Paul Bradley/USGS)

Future Designations?

With potential legal landmark rulings regarding PFAS being deliberated, House Republicans want to know where the Biden administration is going with the increasing regulatory tempo targeting commonly used chemical compounds in manufacturing and molding.

House Energy and Commerce Committee Chair Rep. Cathy McMorris Rodgers (R-Wash.) and Environment, Manufacturing, and Critical Materials Subcommittee Chair Rep. Buddy Carter (R-Ga.) in a July 12 letter asked EPA Director Michael Regan about “potential future designations” of PFAS under CERCLA.

“As you are aware, PFAS are not a single chemical, but rather an entire group of synthetic chemicals used in a wide variety of common applications,” they said, noting PFOA and PFOS “are just a fraction of the entire PFAS class” of more than 14,000 unique substances.

Noting Mr. Regan testified before the Environment, Manufacturing, and Critical Materials Subcommittee earlier this year that the EPA will classify other PFAS in addition to PFOA and PFOS, the chairs asked in the letter if the agency plans to have the Biden administration do so through executive order because it appears to have little on its rule-making docket.

There is “no such action is described in the Office of Management and Budget’s most recent unified agenda for upcoming EPA rulemakings,” the letter states. “This discrepancy [...] raises concerns about whether EPA wishes to have meaningful input from all those impacted by a CERCLA hazardous substance designation.”