Court Upholds Rule Designating Two Forever Chemicals as Hazardous Substances

Today, the U.S. Court of Appeals for the D.C. Circuit upheld the U.S. Environmental Protection Agency’s (EPA) 2024 decision to list two toxic “forever chemicals” — PFOA and PFOS — as hazardous substances under the federal Superfund law.

The designations give EPA additional authority to promote the remediation of contaminated sites and make the parties responsible for PFOA and PFOS releases liable for the resulting cleanup costs. The court rejected challenges to the designations brought by chemical manufacturers, waste disposal companies, and others, finding that the designations were consistent with the Superfund law. Earthjustice represented Clean Cape Fear, Environmental Justice Task Force, Fight for Zero, Merrimack Citizens for Clean Water, and NRDC (Natural Resources Defense Council) as intervenors in defense of the designations.

“This decision is a major win for contaminated communities across the country,” said Jonathan Kalmuss-Katz, senior attorney with Earthjustice. “For too long, industrial polluters have profited from the release of toxic PFAS while sticking taxpayers and communities with the bill when those releases need to be cleaned up. Today’s decision affirms EPA’s authority to hold those companies responsible for the harms they cause.”

“Communities contaminated by PFAS chemicals deserve this win,” said Dr. Anna Reade, director of PFAS Advocacy at NRDC. “PFAS ‘forever’ chemicals persist for decades and there is no safe level of exposure to PFOA and PFOS. Polluters trying to avoid responsibility for decades-long PFOA and PFOS contamination need to focus on fixing the mess they made.”

PFOA and PFOS are man-made “forever chemicals” from the larger PFAS class. Once used in products like nonstick cookware, stain-resistant fabrics, and firefighting foam, PFOA and PFOS persist in the environment, build up in people’s bodies, and are linked to serious health harms, including cancers and permanent hormone disruption.