Alert

EPA Requires PFAS Liability Screening for Brownfield Grant Recipients

December 12, 2025

On December 11, 2025, the U.S. Environmental Protection Agency (EPA) issued new guidance clarifying that recipients of pending Brownfield grants must first demonstrate they are not potentially liable under CERCLA §107 for perfluorooctanoic acid (PFOA) or perfluorooctane sulfonic acid (PFOS) contamination at their sites before using federal funds for assessment or cleanup. This clarification follows EPA’s final designation of PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

According to an updated EPA FAQ webpage (Dec. 5, 2025), grant recipients must now prove liability protections are in place if they intend to use Brownfield funding at sites where PFOA or PFOS contamination may be present. While designation under CERCLA does not automatically assign liability to property owners, it does impose a new threshold for grant eligibility: recipients must establish that they are not “potentially responsible parties” (PRPs) for PFAS contamination.

To meet this requirement, grant recipients will need to comply with EPA’s updated All Appropriate Inquiries (AAI) rule, which now includes procedures for evaluating potential PFAS liabilities. Specifically, Phase I Environmental Site Assessments (ESAs) must consider “conditions indicative of releases or threatened releases” of PFOA or PFOS in order to secure CERCLA liability protections.

This clarification comes as EPA is accepting applications for $225 million in Brownfield Multipurpose, Assessment, and Cleanup Grants for FY2026, with a deadline of January 28, 2026.

Background and Legal Context

• The 2024 CERCLA rule, issued under the Biden administration, designated PFOA and PFOS—two legacy per- and polyfluoroalkyl substances (PFAS)—as hazardous substances under CERCLA §102.
• Although subject to ongoing litigation, the 2024 rule remains in effect. Notably, the current EPA leadership, including Administrator Lee Zeldin, has chosen to defend the designation in court, continuing arguments originally advanced under prior EPA leadership.
• Final briefing in the legal challenge concluded on December 5, 2025, with oral arguments scheduled for January 20, 2026 before the U.S. Court of Appeals for the D.C. Circuit.

Implications for Brownfield Stakeholders

EPA’s clarification raises significant considerations for:

• Brownfield Grant Applicants: Must confirm they are not liable under CERCLA for PFAS contamination, including through due diligence conducted under AAI protocols.
• Site Owners and Developers: Must consider whether historical uses (e.g., biosolids application) may implicate PFAS liability and trigger Phase I assessment obligations.
• Environmental Professionals: Should ensure AAI-compliant assessments incorporate the latest ASTM E1527-21 standard, which now includes provisions for PFAS analysis.
• Real Estate and Transactional Counsel: May need to advise clients on PFAS-related CERCLA defenses and the availability of funding in light of potential liability.

EPA further notes that entities identified as potentially responsible for PFAS contamination or continuing releases are ineligible for Brownfield funding. Additionally, although PFOA and PFOS were previously considered “pollutants or contaminants” under CERCLA, their designation as “hazardous substances” now imposes stricter eligibility criteria tied to liability protections.

Screening and Cleanup Levels Unaffected

EPA emphasizes that this CERCLA designation does not alter PFAS screening or cleanup levels at Brownfield sites. Those remain under the authority of individual states and tribal governments.

If you have questions about how the new EPA guidance may affect your eligibility for Brownfield grants or your obligations under CERCLA, please contact our Environmental Law or Transactional Due Diligence teams.