Petitioners say agency exceeded its authority in ‘imposing retroactive liability’ on manufacturers, retailers, local governments with chemicals rule.
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.
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.”
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 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.
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 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.”
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.”
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.
“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.”
