US Chamber Challenges EPA’s PFAS Superfund Rule in D.C. Circuit

The US Chamber of Commerce and two other trade groups are opposing in D.C. federal court the EPA’s designation of the two commonly detected “forever chemicals” as hazardous Superfund substances.

The petition, filed June 10 and docketed Wednesday, is the first to ask the US Court of Appeals for the D.C. Circuit to review the agency’s move. The Chamber was joined by Associated General Contractors of America Inc. and the National Waste and Recycling Association.

Attorneys have predicted litigation even before the Environmental Protection Agency published its final rule, due to the liability companies now face and because the regulation marks the first time that the agency has directly designated hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, or Superfund law.

Labeling the two chemicals—perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS)—hazardous CERCLA substances also opens the door to the agency or states requiring companies to clean up properties contaminated with them and for potentially responsible parties to sue each other to help cover what can be multimillion-dollar cleanup costs.

The EPA’s designation means it’s decided that both per- and polyfluoroalkyl substances (PFAS) can present a substantial danger to people and the environment.

Yet for decades the two very persistent chemicals were used to make so many thousands of products used by industries, federal facilities, and state and local governments. The result is that both chemicals can be found in nearly all US residents, and they’re so ubiquitous they’re even found in rain.

The petition doesn’t contain the reasoning behind the challenge, which is usually developed during briefing. The court ordered the challengers to file initial submissions by July 29.

Hunton Andrews Kurth LLP represents the petitioners.

The case is Chamber of Com. v. EPA, D.C. Cir., No. 24-01193, petition 6/10/24.