Alert

EPA’s PFAS Hazardous Substances Designation: Legal and Compliance Implications

January 2, 2026

On May 8, 2024, the U.S. Environmental Protection Agency (EPA) finalized a rule designating two types of per- and polyfluoroalkyl substances (PFAS)—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This designation significantly broadens the scope of liability and imposes substantial reporting, remediation, and litigation risks on a wide range of stakeholders.

On December 18, 2025, the U.S. House Subcommittee on Environment convened a hearing titled “Examining the Impact of EPA’s CERCLA Designation for Two PFAS Chemistries and Potential Policy Responses to Superfund Liability Concerns” to assess the far-reaching legal and policy ramifications of this action.

Key Developments

1. PFAS Designation Under CERCLA. The EPA designated PFOA and PFOS as hazardous substances under CERCLA §102(a), triggering mandatory reporting of releases, authorizing federal cleanup responses, and invoking CERCLA’s strict, joint and several, and retroactive liability framework.
2. CERCLA Liability Scope. CERCLA imposes liability on current and former owners/operators, transporters, and arrangers of hazardous substances. Importantly, this includes passive receivers—such as water utilities, wastewater treatment plants, and landfills—that do not manufacture or use PFAS but may be exposed through environmental media.
3. EPA’s Enforcement Discretion Policy. An April 2024 EPA policy memo signals that enforcement will prioritize “equitable factors,” suggesting EPA does not intend to pursue passive receivers where fairness concerns outweigh regulatory goals. However, this discretionary approach lacks the permanence of statutory reform.
4. Litigation and State Activity. Multiple lawsuits challenging the rule have been consolidated in the D.C. Circuit. Meanwhile, states have advanced PFAS regulation independently, with more than 20 enacting bans on PFAS in products such as food packaging and cosmetics.
5. Congressional Consideration of Legislative Fixes. Bipartisan momentum is growing for legislation that exempts passive receivers from CERCLA liability. Bills like H.R. 1267 (Water Systems PFAS Liability Protection Act) seek to clarify liability for water systems and other non-contributors to PFAS releases

Implications for Stakeholders

• Water Utilities, Waste Facilities, and Landowners: These entities may face potential allegations of liability under CERCLA despite not using or manufacturing PFAS. The EPA’s non-binding enforcement discretion does not insulate from private contribution claims.
• Manufacturers and Downstream Users: The designation heightens the urgency to trace PFAS usage and manage waste streams to avoid future liability.
• Brownfield Developers: CERCLA liability may chill redevelopment unless exemptions or clear standards are established. EPA currently requires Brownfields Grant recipients to show they are not liable parties under §107 to use funds for PFAS cleanup.
• Investors and Insurers: The expanded potential for liability may significantly affect portfolio risk, especially in sectors with legacy contamination or downstream exposure.

Next Steps & Considerations

1. Due Diligence: Entities acquiring or operating facilities with potential PFAS contamination should consider conducting robust environmental due diligence and seek legal counsel on liability defenses, including “innocent landowner” and “bona fide prospective purchaser” protections.
2. Permitting and Compliance Review: Evaluate whether existing permits (e.g., NPDES, RCRA) include PFAS-related standards and whether these trigger CERCLA’s permit exemptions.
3. Stakeholder Engagement: Engage with industry groups and legislators on potential statutory reforms to protect passive receivers and clarify cleanup obligations.
4. Litigation Monitoring: Track the consolidated D.C. Circuit litigation and possible judicial limitations on EPA’s designation authority.

The CERCLA designation of PFOA and PFOS marks a turning point in PFAS regulation. While aimed at remediating contamination and holding polluters accountable, the rule’s broad liability framework creates uncertainty and risk for passive receivers and downstream users. Stakeholders should take proactive steps to understand exposures, assess legal risk, and advocate for policy solutions that balance environmental accountability with operational realities.