Examining the Future of PFAS Cleanup and Disposal Policy

Statement of

Kate R. Bowers

Supervisory Attorney

Before

Environment and Public Works Committee

U.S. Senate

Hearing on

“Examining the Future of PFAS Cleanup and

Disposal Policy”

November 19, 2025

Congressional Research Service

https://crsreports.congress.gov

Congressional Research Service

1

Executive Summary

C

hairman Capito, Ranking Member Whitehouse, and Members of the Committee:

My name is Kate Bowers, and I am a supervisory attorney in the American Law Division of the

Congressional Research Service (CRS). Thank you for the opportunity to testify on the

implications of the U.S. Environmental Protection Agency’s (EPA’s) designation in 2024 of two

per- and polyfluoroalkyl substances (PFAS) as hazardous substances pursuant to the Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA). This testimony will discuss

CERCLA’s framework for holding parties responsible for the costs to clean up contaminated sites,

including the mechanisms by which private parties may sue other private parties to recoup cleanup costs.

This testimony will also address EPA’s CERCLA PFAS enforcement discretion policy, which it issued at

the same time that it announced its final designation, and selected defenses to and exemptions from

CERCLA liability.

Designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) subjects releases

of those PFAS into the environment to CERCLA’s reporting requirements and liability framework.

Financial liability under CERCLA requires (1) a release or threatened release (2) of a hazardous substance

(3) from a facility into the environment (4) that causes the incurrence of response costs. Only certain

categories of parties with a connection to the contamination—current owners or operators of a site, past

owners or operators at the time the hazardous substances were disposed of there, arrangers, and

transporters—may be held liable. Designation alone does not trigger a public or private response action to

address PFAS contamination at any site, however, and also does not determine any party’s liability.

Furthermore, designation as hazardous under CERCLA does not cause PFOA and PFOS to be treated as

hazardous or toxic substances under other federal statutes with their own definitions of those terms.

Designation also does not address requirements under other state and federal laws for treatment, storage,

and disposal of PFOA and PFOS.

Liability under CERCLA is retroactive, strict, and joint and several. Parties may be liable under CERCLA

for response costs, injury to natural resources, natural resource damage assessments, and public health

studies. CERCLA authorizes EPA to clean up contaminated sites and to compel entities that bear

responsibility for all or part of the contamination at a site to perform or pay for cleanup activities.

Additionally, private parties that incur cleanup costs may seek to recoup those costs from other parties or

from the Superfund Trust Fund.

Entities that have been involved in releases of PFAS may be held liable if the other preconditions to

liability are met and no exemptions apply. These entities include parties associated with facilities or sites

where PFAS was produced, used, or disposed, such as chemical manufacturing or processing facilities,

firefighting training areas that used fluorinated aqueous film-forming foam, landfills or incinerators,

wastewater treatment facilities, and sites with land application or disposal of biosolids. The determination

of an individual party’s liability under CERCLA is a fact-intensive and site-specific inquiry. Parties that

fall into one or more categories of liability under CERCLA could be held liable for certain costs covered

under the statute, but some of CERCLA’s numerous defenses to and limitations on liability could apply.

Concurrent with the final designation, EPA issued a PFAS enforcement discretion and settlement policy

memorandum explaining that the agency does not intend to recover cleanup costs from entities where

equitable factors do not support CERCLA responsibility, including farmers, municipal landfills, water

utilities, municipal airports, and local fire departments. EPA’s decision not to pursue enforcement would

not necessarily protect entities from enforcement action by states or from third-party lawsuits from

entities who themselves have been held liable for response costs and who are seeking to recoup costs

from other liable parties. EPA has explained, however, that it intends to use the CERCLA settlement

process to protect those entities from such suits, which could address that potential outcome.

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CRS remains available to the Committee to provide research and analysis of these issues or other

questions related to CERCLA and the regulation of PFAS through testimony, briefings, and confidential

memoranda.

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Introduction

C

hairman Capito, Ranking Member Whitehouse, and Members of the Committee:

My name is Kate Bowers, and I am a supervisory attorney in the American Law Division of the

Congressional Research Service (CRS). Thank you for the opportunity to testify on the

implications of the U.S. Environmental Protection Agency’s (EPA’s) designation of two perand polyfluoroalkyl substances (PFAS) as hazardous substances pursuant to the Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA). This testimony will discuss

CERCLA’s framework for holding parties responsible for the costs to clean up contaminated sites,

including the mechanisms by which private parties may sue other private parties to recoup cleanup costs.

This testimony will also address EPA’s PFAS enforcement discretion policy.

PFAS are a large, diverse group of fluorinated compounds that have been used in numerous commercial,

industrial, and military applications. PFAS are persistent in the environment and have been detected in

soil, surface water, groundwater, and public water supplies. Studies suggest that exposures to PFAS above

certain levels may lead to adverse health effects.1

On April 19, 2024, EPA announced a final rule designating two PFAS—perfluorooctanoic acid (PFOA)

and perfluorooctanesulfonic acid (PFOS)—as hazardous substances pursuant to CERCLA.2 Designation

of PFOA and PFOS as hazardous substances under CERCLA has several effects. Releases of the

designated PFAS are subject to the reporting requirements for certain releases of hazardous substances

pursuant to Section 103 of CERCLA.3 Failure to comply with those reporting requirements could result in

criminal penalties.4 Designation also authorizes EPA to respond to releases or threat of releases of PFOA

or PFAS without first finding that the release may present an imminent and substantial danger to the

public health or welfare.5

Releases of PFAS designated as hazardous substances are also subject to CERCLA’s liability framework.

Financial liability under CERCLA requires (1) a release or threatened release (2) of a hazardous substance

(3) from a facility into the environment (4) that causes the incurrence of response costs.6 To be held liable

under CERCLA, an entity must fall within one or more of the categories of “covered persons” or

“potentially responsible parties” (PRPs) set forth in the statute. Each element of liability—and thus the

scope of liability—is defined under the statute. Various exceptions and defenses further limit the scope of

liability where applicable.

Determination of liability is a fact-intensive and site-specific inquiry that would depend on factors

including a party’s relationship to the contamination, the nature of the PFAS contamination, and the

party’s status under several federal environmental permitting regimes. Additionally, a party’s liability for

third-party contribution claims under CERCLA would depend in part on whether that party had resolved

its liability to EPA or a state and thus was entitled to protection from future suits.

1 For further discussion of the properties, uses, and health effects of PFAS, see CRS Report R45986, Federal Role in Responding

to Potential Risks of Per- and Polyfluoroalkyl Substances (PFAS), coordinated by Elena H. Humphreys (2022).

2 The rule designation was announced on April 19, 2024, and published on May 8, 2024. Designation of Perfluorooctanoic Acid

(PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances, 89 Fed. Reg. 39124 (May 8, 2024).

3 42 U.S.C. § 9603.

4 Id. § 9603(b).

5 Id. § 9604(a)(1).

6 Id. § 9607(a). For purposes of this testimony, “cleanup costs” encompasses “all costs of removal or remedial action incurred by

the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan” and “any other

necessary costs of response incurred by any other person consistent with the national contingency plan.” Id.

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CERCLA hazardous substance designation alone does not trigger a public or private response action to

address PFAS contamination at any site, and also does not determine any party’s liability. Furthermore,

such designation under CERCLA does not cause PFOA and PFOS to be treated as hazardous or toxic

substances under other federal statutes with their own definitions of those terms. Designation also does

not address requirements under other state and federal laws for the treatment, storage, and disposal of

PFOA and PFOS.7

At the same time EPA announced the final designation, it also issued a PFAS enforcement discretion and

settlement policy memorandum explaining that it does not intend to recover cleanup costs from entities

where equitable factors do not support CERCLA responsibility, including farmers, municipal landfills,

water utilities, municipal airports, and local fire departments.8 EPA also explained that it intends to use the

CERCLA settlement process to protect those entities from third-party lawsuits from entities who

themselves have been held liable for response costs and who are seeking to recoup costs from other liable

parties.

CRS remains available to the Committee to provide research and analysis of these issues or other

questions related to CERCLA and the regulation of PFAS through testimony, briefings, and confidential

memoranda.

Federal Response Authority and Overview of Cleanups

Congress enacted CERCLA to “promote the timely cleanup of hazardous waste sites and to ensure that

the costs of such cleanup efforts were borne by those responsible for the contamination.”9 Liability under

CERCLA is generally contingent on a response action, or cleanup, at a site, and the consequent incurrence

of response costs. The response action may be carried out by a private party, but it may also be a federal

action: Section 104(a) of CERCLA authorizes the President to respond to a release (or substantial threat

of a release) of a hazardous substance into the environment, or of a pollutant or contaminant that may

present an “imminent and substantial danger to the public health or welfare.”10 The President has

delegated CERCLA’s response authority to EPA and other agencies that administer federal facilities.11

In general, CERCLA response actions for the purposes of cleanup fall into two categories. Removal

actions are generally shorter-term actions taken to address immediate risks.12 Remedial actions are

generally longer-term actions to address contamination more permanently and may involve long-term

containment of wastes.13

7 See EPA, Questions and Answers about Designation of PFOA and PFOS as Hazardous Substances under CERCLA,

https://www.epa.gov/superfund/questions-and-answers-about-designation-pfoa-and-pfos-hazardous-substances-under-cercla (last

visited Nov. 15, 2025).

8 David M. Uhlmann, Assistant Administrator for Enforcement and Compliance Assurance, EPA, PFAS Enforcement Discretion

and Settlement Policy Under CERCLA (Apr. 19, 2024), https://www.epa.gov/system/files/documents/2024-04/pfas-enforcementdiscretion-settlement-policy-cercla.pdf (hereinafter “EPA PFAS Enforcement Discretion and Settlement Policy.”

9 Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602 (2009).

10 42 U.S.C. § 9604(a).

11 Id. § 9615. For more general information regarding CERCLA, see CRS Report R48630, Federal Environmental Remediation

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a.k.a. “the Superfund Law”, by

Lance N. Larson (2025).

12 42 U.S.C. § 9601(23).

13 Id. § 9601(24).

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The designation of PFOA and PFOS as hazardous substances does not automatically trigger the CERCLA

response process or determine applicable cleanup standards.14 The level of cleanup that CERCLA requires

is a site-specific determination. Section 121(d) specifies that the selected remedial action “shall attain a

degree of cleanup . . . and of control of further release at a minimum which assures protection of human

health and the environment.”15 Section 121(d) further specifies that a cleanup must comply with

applicable, relevant, and appropriate requirements (ARARs), including standards or requirements set forth

in federal or state environmental or facility siting laws.16

CERCLA also identifies two sets of federal standards under other statutes that apply to the selection of

remedial actions at any site (so long as those standards are relevant and appropriate to the circumstances

of an individual release or threatened release). First, Section 121(d) requires remedial actions to achieve a

level of cleanup that at least attains Maximum Contaminant Level (MCL) goals established under the

Safe Drinking Water Act.17 Second, the cleanup must be consistent with any water quality criteria

established under Sections 303 or 304 of the Clean Water Act (CWA).18

EPA issued a final national primary drinking water regulation for six PFAS, including PFOA and PFOS,

in April 2024.19 The regulation includes MCLs for PFOA and PFOS each at 4.0 parts per trillion.20 On

May 14, 2025, EPA announced that the agency would retain the 2024 drinking water standards for PFOA

and PFOS but intended to issue a proposed rule to extend compliance deadlines as well as to rescind and

reconsider its regulatory determinations for the other PFAS addressed in the 2024 rule.21 EPA also stated

that it would establish a federal exemption framework and initiate enhanced outreach to water systems.22

Additionally, EPA published final recommended water quality criteria for PFAS to protect aquatic life in

October 2024 and draft recommended water quality criteria to protect human health in December 2024.23

Designation of MCLs and finalization of water quality criteria for any PFAS does not trigger any action

under CERCLA, but those requirements could be incorporated into site-specific cleanup standards to the

extent those requirements are deemed “relevant and appropriate,” consistent with the underlying premise

of an ARAR.

Many states and tribes have enacted separate authorities (often called “mini-Superfund laws”) for their

own programs to clean up contaminated sites.24 Section 114 of CERCLA specifically provides that states

may impose additional liability or requirements with respect to the release of hazardous substances within

14 See EPA, Questions and Answers about Designation of PFOA and PFOS as Hazardous Substances under CERCLA,

https://www.epa.gov/superfund/questions-and-answers-about-designation-pfoa-and-pfos-hazardous-substances-under-cercla (last

visited Nov. 13, 2025).

15 42 U.S.C. § 9621(d)(1).

16 Id. § 9621(d)(2).

17 Id. § 9621(d)(2)(A)(ii); see also 42 U.S.C. § 300g-1.

18 42 U.S.C. § 9621(d)(2)(A)(ii); see also 33 U.S.C. §§ 1313, 1314.

19 PFAS National Primary Drinking Water Regulation, 89 Fed. Reg. 32532 (April 26, 2024).

20 Id.

21

EPA, EPA Announces It Will Keep Maximum Contaminant Levels for PFOA, PFOS (May 14, 2025),

https://www.epa.gov/newsreleases/epa-announces-it-will-keep-maximum-contaminant-levels-pfoa-pfos.

22 Id.

23 Final Recommended Aquatic Life Criteria and Benchmarks for Select PFAS, 89 Fed. Reg. 81077 (Oct. 7, 2024); Draft

National Recommended Ambient Water Quality Criteria for the Protection of Human Health for Perfluorooctanoic Acid,

Perfluorooctane Sulfonic Acid, and Perfluorobutane Sulfonic Acid, 89 Fed. Reg. 105041 (Dec. 26, 2024). For additional

discussion of the regulation of PFAS under the Clean Water Act, see CRS In Focus IF12148, Regulating PFAS Under the Clean

Water Act, by Laura Gatz (2025).

24 See EPA, State Response Programs, https://www.epa.gov/enforcement/state-response-programs (last updated May 29, 2025);

see also JAMES B. POLLACK ET AL., PFAS DESKBOOK 102–07 (2023) (discussing use of state mini-Superfund laws to address

PFAS contamination).

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their borders.25 The regulations governing response actions taken under CERCLA, which are referred to

as the National Contingency Plan (NCP), specify procedures for EPA and states to enter into memoranda

of agreement for carrying out cleanups.26 Private parties may also undertake response actions, either at

their own initiative or subject to an order issued by EPA or a court under CERCLA.27

Overview of Liability Under CERCLA

CERCLA imposes liability on parties responsible for the presence of hazardous substances at a site.

Parties with specific relationships to contamination at a site may be held liable when there is (1) a release

or threatened release (2) of a hazardous substance (3) from a facility into the environment (4) that causes

the incurrence of response costs.28 The definitions of “release” and “hazardous substance”—and, by

extension, EPA’s response authority and parties’ liability for response costs—exclude multiple types of

releases and substances. The scope of these definitions, as well as the range of parties that can be held

liable under CERCLA, are relevant in considering the effects of the PFAS hazardous substance

designation.

Liability under CERCLA may take the form of an obligation to carry out a response action, or an

obligation to pay response costs incurred by another party. In general, a party that incurs response costs

under the conditions stated above may seek to recover some or all of those costs from other parties that

are potentially liable for the costs under CERCLA.29 CERCLA litigation can thus provide a framework

for a large number of potentially liable parties to arrive at an equitable allocation of liability for response

costs, based on their share of responsibility determined on a case-by-case basis.

Who May Be Liable Under CERCLA

CERCLA provides a mechanism to compel covered persons or potentially responsible parties (PRPs) to

perform or pay for a cleanup of hazardous substances. Private parties and federal, state, and local

governmental entities can be liable as PRPs.30 CERCLA establishes financial liability for four categories

of PRPs:

•

•

•

•

The current owner or operator of a facility;

Former owners or operators of a facility at the time hazardous substances were disposed

of there;

Generators and parties that arranged for the transport, disposal, or treatment of hazardous

substances; and

Transporters of hazardous substances to a facility.31

25 42 U.S.C. § 9614(a).

26 See 40 C.F.R. §§ 300.500–300.525.

27 See id. § 300.700.

28 For general overview of liability under CERCLA, see CRS In Focus IF11790, Liability Under the Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA), by Kate R. Bowers (2021); see also EPA, Superfund

Liability, https://www.epa.gov/enforcement/superfund-liability (last updated Apr. 10, 2025).

29 42 U.S.C. §§ 9607(a), 9613(f). CERCLA does not provide a cause of action for members of the public at large, including those

who may have been harmed by the release of hazardous substances, to seek damages from parties that are liable for response

costs under CERCLA. See infra “Scope of Liability.”

30 See 42 U.S.C. § 9601(21) (defining “person” as “an individual, firm, corporation, association, partnership, consortium, joint

venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any

interstate body”).

31 Id. § 9607(a).

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Consideration of whether a party is liable as an owner, operator, generator, or transporter is a fact-specific

inquiry based on the circumstances of an individual case. As a result, it is not possible to predict with

certainty the kinds of entities that will face liability under CERCLA related to FPAS contamination. The

parties that could be held liable, if the other preconditions to liability are met and no exemptions apply,

are entities that have been involved in releases of PFAS. This includes parties associated with facilities or

sites where PFAS was produced, used, or disposed, such as owners or operators of chemical

manufacturing or processing facilities that released PFAS; persons who released PFAS from the use of

fluorinated aqueous film-forming foam (AFFF), such as airport owners and operators and local fire

departments; landfill owners and operators; generators and transporters of PFAS wastes released at

landfills or other disposal or treatment sites; and owners and operators of wastewater treatment facilities

that discharge PFAS. As discussed below, however, EPA has expressed an intent to refrain from taking

enforcement action with respect to some of these categories of entities, as well as to use settlement

agreements to protect them from lawsuits brought by other parties.32 Additionally, because CERCLA

liability extends to the federal government, the Department of Defense and other federal departments or

agencies that released PFAS, such as through the use of AFFF, are also potentially liable.

Some commenters on the proposed designation raised concerns regarding the potential liability of

“passive receivers” such as drinking water treatment plants, municipal wastewater treatment facilities,

solid waste landfills, and composting facilities.33 Although the term “passive receivers” is not defined in

CERCLA, it is generally understood to refer to parties that receive media containing PFAS (and other

hazardous substances) but do not themselves manufacture or use those substances. While some of the

liability exemptions discussed below may apply, passive receivers are sometimes named as defendants in

third-party CERCLA contribution claims brought by PRPs seeking to recoup some of the cleanup costs

for which they have been held liable.34 Whether a passive receiver would be obliged to perform or pay for

a cleanup of PFAS contamination under CERCLA would depend on numerous factors, including the

existence of a response action and the incurrence of response costs, the applicability of various defenses

to and exemptions from liability, and (in the case of a federal cleanup effort) EPA’s exercise of

enforcement discretion.

Questions have also arisen on whether manufacturers of PFAS could be held liable for cleanup costs

under CERCLA. A manufacturer could be liable if a release occurred as part of the manufacturing process

at a site the manufacturer owned or operated. If a company intended to dispose of a hazardous substance

that it manufactured, it might also be liable as an arranger.35 In general, however, CERCLA does not

provide a standalone mechanism for holding the manufacturer of a hazardous substance liable solely

based on its manufacture of a chemical that another party released into the environment subsequent to

purchase. Courts typically do not hold a manufacturer selling a “useful” commercial product liable under

CERCLA for the hazardous waste contained in those products.36 In 2009, the Supreme Court held that,

although CERCLA liability would attach “if an entity were to enter into a transaction for the sole purpose

32 See infra “EPA’s Enforcement Discretion;” David M. Uhlmann, Assistant Administrator for Enforcement and Compliance

Assurance, EPA, PFAS Enforcement Discretion and Settlement Policy Under CERCLA (Apr. 19, 2024),

https://www.epa.gov/system/files/documents/2024-04/pfas-enforcement-discretion-settlement-policy-cercla.pdf (hereinafter

“EPA PFAS Enforcement Discretion and Settlement Policy.”

33 E.g., Am. Pub. Works Ass’n, Comment Letter on Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic

Acid (PFOS) as CERCLA Hazardous Substances (Nov. 7, 2022), https://downloads.regulations.gov/EPA-HQ-OLEM-20190341-0344/attachment_1.pdf.

34 E.g., Transportation Leasing Co. v. California, 861 F. Supp. 931 (C.D. Cal. 1993).

35 E.g., United States v. Gen. Elec. Co., 670 F.3d 377, 385–86 (1st Cir. 2012); Cadillac Fairview/California, Inc. v. United States,

41 F.3d 562, 566 (9th Cir. 1994).

36 E.g., Fla. Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1317 (11th Cir. 1990) (holding that manufacturers of

electrical transformers containing mineral oil contaminated with polychlorinated biphenyls were not liable under CERCLA

absent evidence that the manufacturers intended to dispose of hazardous waste when selling the transformers).

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of discarding a used and no longer useful hazardous substance,” an entity would not be liable as an

arranger “merely for selling a new and useful product if the purchaser of that product later, and

unbeknownst to the seller, disposed of the product in a way that led to contamination.”37

Accordingly, the manufacturers of designated PFAS or products containing designated PFAS likely would

not be liable under CERCLA simply because the chemicals were released into the environment

subsequent to manufacture by entities using those products. If, on the other hand, the manufacturer took

intentional steps to dispose of the PFAS-containing products or sold the products with the specific intent

to dispose of them, a finding of arranger liability could be more likely. In any case, a court evaluating

potential liability would closely examine the manufacturer’s intent, the nature of any transaction in selling

products to its customers, and the nature and commercial value of the product being sold.38 More

commonly, however, PFAS manufacturers have faced suit under other laws, including state environmental

laws and tort law.39

Definition of Release

One prerequisite to liability under CERCLA is a release or threatened release. CERCLA defines “release”

as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,

leaching, dumping, or disposing into the environment (including the abandonment or discarding of

barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or

contaminant).”40 The definition excludes certain types of activities, including releases that result in

exposure only within a workplace; emissions from engine exhaust of a motor vehicle, train, aircraft,

vessel, or pipeline pumping station engine; certain releases of nuclear material; and the “normal”

application of fertilizer.41

Questions have arisen regarding whether CERCLA liability could arise from the presence of designated

PFAS in biosolids, which are the sewage sludge from wastewater treatment facilities. In some cases,

biosolids may be applied to agricultural land to fertilize crops.42 EPA has not addressed this question

specifically with respect to PFAS, but it has indicated more generally that biosolids placed on the land for

a beneficial purpose (such as a fertilizer substitute or soil conditioner) would not constitute a “release”

that could give rise to CERCLA liability if the biosolids were applied in accordance with relevant federal

requirements.43 Additionally, as discussed below, EPA has indicated that it does not intend to take

enforcement action against farms where biosolids are applied to the land.44

37 Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 610 (2009).

38 E.g., Cal. Dep’t of Toxic Substances Ctrl. v. Alco Pac., Inc., 508 F.3d 930, 938 (9th Cir. 2007).

39 See, e.g., N.J. Dep’t of Env’t Protection v. E. I. DuPont de Nemours & Co., No. 1:19-cv-14758 (D.N.J.). The parties in that

case have reached a proposed settlement that, if approved by the court, would require payments of up to $450 million from 3M

and up to $875 million from DuPont and related companies. See N.J. Dep’t of Env’t Protection, 3M PFAS Settlement,

https://dep.nj.gov/3m/ (last visited Nov. 15, 2025); N.J. Dep’t of Env’t Protection, DuPont/Chemours PFAS Settlement,

https://dep.nj.gov/dupont/ (last visited Nov. 15, 2025). See also Order and Opinion, In re Aqueous Film-Forming Foams Products

Liability Litigation, No. 18-mn-2873, in City of Camden v. EIDP, Inc., No. 2:23-cv-3230 (D.S.C. Feb. 8, 2024), ECF No. 175

(approving settlement in class action on behalf of public water systems).

40 42 U.S.C. § 9601(22).

41 Id.

42 EPA, Land Application of Biosolids, http://epa.gov/biosolids/land-application-biosolids (last updated Jan. 6, 2025).

43 Standards for the Use of Disposal of Sewage Sludge, 58 Fed. Reg. 9248, 9262 (Feb. 19, 1993). EPA regulates the land

application of biosolids pursuant to Section 405(d) of the Clean Water Act. See 33 U.S.C. § 1345(d); 40 C.F.R. pt. 503.

44 See infra “EPA’s Enforcement Discretion;” EPA PFAS Enforcement Discretion and Settlement Policy, supra note 8, at 8.

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Definition of Hazardous Substance

A substance may be considered a “hazardous substance” for purposes of CERCLA based on either a

designation pursuant to CERCLA itself or a designation under another statute to which CERCLA refers.

Section 102 of CERCLA authorizes EPA to designate as hazardous substances elements, compounds,

mixtures, solutions, and substances “which, when released into the environment may present substantial

danger to the public health or welfare or the environment.”45 Section 101(14) of the statute defines

“hazardous substance” to include hazardous substances designated pursuant to Section 102.46 It also

defines the term with reference to several other statutes to include (1) any substance designated as a

hazardous substance under Section 311(b)(2)(A) of the CWA; (2) a characteristic or listed hazardous

waste under Section 3001 of the Solid Waste Disposal Act, often referred to as the Resource Conservation

and Recovery Act (RCRA); (3) any toxic pollutant listed under Section 307(a) of the CWA; (4) any

hazardous air pollutant listed under Section 112 of the Clean Air Act (CAA); and (5) any imminently

hazardous chemical or substance or mixture with respect to which EPA has taken action pursuant to

Section 7 of the Toxic Substances Control Act.47 Designation pursuant to CERCLA Section 102 does not

cause a substance to be considered toxic or hazardous under any of those statutes. Accordingly,

designation under CERCLA does not trigger the requirements that apply to toxic or hazardous substances

under those statutes, including RCRA’s requirements for the treatment, storage, and disposal of materials

that are classified as hazardous waste.

Section 102(a) of CERCLA does not specify factors for the EPA Administrator to consider when

designating a hazardous substance beyond finding that the substance “may present substantial danger to

the public health or welfare or the environment” when released into the environment.48 Currently, there

are no regulations that guide the designation process. When EPA announced that it planned to retain the

2024 designation, the agency stated that it intends to develop a Section 102(a) “Framework Rule” to

“provide a uniform approach to guide future hazardous substance designations, including how the agency

will consider the costs of proposed designations.”49

Approximately 800 substances are currently considered hazardous substances pursuant to CERCLA by

virtue of their designation under one of the statutes cross-referenced in Section 101(14) of CERCLA.50

Prior to 2024, EPA had never used its Section 102 authority to designate a substance as hazardous under

CERCLA. The 2024 designation of PFOA and PFOS represents the first use of EPA’s designation

authority under Section 102.51

EPA’s 2024 Designation

EPA announced its final designation on April 19, 2024, concluding that PFOA and PFOS, and their salts

and isomers, may present substantial danger to public health or welfare or the environment.52 Various

45 42 U.S.C. § 9602(a).

46 Id. § 9601(14).

47 Id.

48 42 U.S.C. § 9602(a).

49 EPA, Trump EPA Announces Next Steps on Regulatory PFOA and PFOS Cleanup Efforts, Provides Update on Liability and

Passive Receiver Issues (Sept. 17, 2025), https://www.epa.gov/newsreleases/trump-epa-announces-next-steps-regulatory-pfoaand-pfos-cleanup-efforts-provides.

50 EPA, CERCLA Hazardous Substances Defined, https://www.epa.gov/epcra/cercla-hazardous-substances-defined (last updated

Jan. 14, 2025).

51 See Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous

Substances, Proposed Rule, 87 Fed. Reg. 54415, 54421 (Sept. 6, 2022).

52 Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances,

89 Fed. Reg. 39124 (May 8, 2024).

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industry associations filed petitions for review of the designation, and those challenges were consolidated

into a single proceeding that is still pending before the U.S. Court of Appeals for the D.C. Circuit.53 In

February 2025, EPA moved to hold the case in abeyance to allow the new administration to review the

designation and the litigation.54 The court granted EPA’s motion and subsequent requests to extend the

abeyance.55 On September 17, 2025, EPA filed a motion indicating that it had completed its review of the

designation and decided to retain it.56 The agency asked the court to lift the abeyance and set a schedule to

complete briefing. The court granted EPA’s motion, and the case is now fully briefed but has not yet been

set for oral argument.57

The immediate effects of the PFAS hazardous substance designation under CERCLA are relatively

circumscribed. Releases of a hazardous substance above a threshold amount are subject to reporting

requirements, and contracts for the sale or transfer of federal property must disclose the storage, release,

or disposal of hazardous substances on the property.58 Listed and designated hazardous substances under

CERCLA are also regulated as hazardous material under the Hazardous Materials Transportation Act.59

Additionally, Section 104(a) of CERCLA authorizes EPA to conduct response actions of hazardous

substances if there is a release or threatened release; by contrast, EPA must establish that a release or

threatened release of a pollutant or contaminant may present an imminent and substantial danger to the

public health or welfare in order to exercise its Section 104 response authority.60 While designation also

may subject releases of PFOA and PFOS into the environment to CERCLA’s liability framework,

designation alone does not trigger a public or private response action to address PFAS contamination at

any site and is not determinative of any party’s liability.

EPA’s designation of PFOA and PFOS as hazardous substances affected the status of those two PFAS

under CERCLA but not under other federal laws, including RCRA’s framework for regulating treatment,

storage, and disposal of solid waste and hazardous waste. Because the treatment, storage, and disposal of

solid and hazardous wastes is regulated under RCRA, not CERCLA, the designation of PFOA and PFOS

as hazardous under CERCLA does not result in requirements for the treatment, storage, or disposal of

PFOA or PFOS. Additionally, state mini-Superfund laws may provide their own definition of hazardous

substances, though some states define the term to include elements and compounds that are considered

hazardous substances under CERCLA.61 To the extent that a state incorporates by reference CERCLA

hazardous substances and has not specified that releases of PFAS or PFOA are covered in its cleanup

framework, the CERCLA hazardous substance designation would alter the applicability of that state’s

requirements.

Other Definitions of Hazardous or Toxic Substances

Designation of a hazardous substance under CERCLA resembles some comparable federal processes for

designating hazardous or toxic substances and differs from others. For example, the CWA authorizes EPA

to designate hazardous substances and toxic pollutants; neither the statute nor CWA implementing

regulations identify more specific criteria for listing a substance as hazardous, and the statutory section on

53 Chamber of Commerce v. EPA, No. 24-1193 (D.C. Cir.).

54 Motion to Hold Cases in Abeyance, Chamber of Commerce v. EPA, No. 24-1193 (D.C. Cir. Feb. 11, 2025), ECF No. 2100170.

55 Orders, Chamber of Commerce v. EPA, No. 24-1193 (D.C. Cir. Feb. 24, 2025, Apr. 30, 2025, June 2, 2025, July 3, 2025, Aug.

20, 2025), ECF Nos. 2102403, 2113719, 2118607, 2123879, 2131064.

56 Motion to Govern, Chamber of Commerce of the U.S. v. EPA, No. 24-1193 (D.C. Cir. Sept. 17, 2025), ECF No. 2135418.

57 Order, Chamber of Commerce v. EPA, No. 24-1193 (D.C. Cir. Oct. 2, 2025), ECF No. 2138522.

58 42 U.S.C. §§ 9602(b), 9603, 9611, 9620(h)(1), 11004.

59 Id. § 9656.

60 Id. § 9604(a).

61 E.g., N.J. STAT. ANN. § 58:10-23.11b; 35 PA. STAT. § 6020.103.

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toxic pollutants directs EPA to consider “toxicity of the pollutant, its persistence, degradability, the usual

or potential presence of the affected organisms in any waters, the importance of the affected organisms,

and the nature and extent of the effect of the toxic pollutant on such organisms” when revising the list of

toxic pollutants.62 By contrast, RCRA implementing regulations identify three pathways for listing a solid

waste as a hazardous waste; for one of those pathways, EPA is required to consider eleven enumerated

factors before making a determination as to whether a solid waste “is capable of posing a substantial

present or potential hazard to human health or the environment when improperly treated, stored,

transported or disposed of, or otherwise managed.”63

Some of the laws cross-referenced in CERCLA’s definition of hazardous substance impose different

immediate requirements once a substance is listed as hazardous or toxic; in some instances, these

requirements are more extensive than those triggered by CERCLA designation. The Clean Air Act

requires EPA to identify categories of sources that emit hazardous air pollutants and to establish emissions

standards for those source categories for those pollutants.64 When a substance is determined to be a

hazardous waste under RCRA, it is subject to RCRA’s cradle-to-grave regulatory requirements from the

time it is created; while it is transported, treated and stored; and until it is disposed.65 Under the Clean

Water Act, EPA is authorized to develop effluent limitations for toxic pollutants; states are also required to

take certain action with respect to toxic pollutants when developing or revising water quality standards.66

The frequency of designations also varies across the listed statutes. As ratified by Congress in the 1977

CWA amendments, the CWA toxic pollutant list contains 65 entries, some of which represent groups of

pollutants.67 EPA removed three pollutants from the list in 1981 but left the overall number of entries

unchanged, as the delisted pollutants were specific compounds within entries for listed groups.68 The

CWA hazardous substance included 271 hazardous substances when first published by EPA in 1978 and

now includes almost 300 substances.69 The initial list of hazardous air pollutants under the CAA included

189 pollutants; EPA has made approximately five additions, deletions, or redefinitions since 1990.70

Under RCRA, over 800 wastes appear on one of four lists of hazardous wastes.71

Other statutes in addition to CERCLA establish liability frameworks for hazardous or toxic substance

contamination where certain conditions are met.72 In general, however, CERCLA provides a more

comprehensive mechanism than other federal statutes for requiring parties to conduct or pay for the

cleanup of contaminated sites.

62 See 33 U.S.C. §§ 1317(a)(1), 1321(b)(2)(A).

63 40 C.F.R. § 26.11(a)(3).

64 42 U.S.C. § 7412(c).

65 42 U.S.C. §§ 6921–6939g.

66 See 33 U.S.C. § 1317(a); 40 C.F.R. § 131.11.

67 EPA, Toxic and Priority Pollutants Under the Clean Water Act, https://www.epa.gov/eg/toxic-and-priority-pollutants-under-

clean-water-act (last updated Apr. 22, 2025); 40 C.F.R. § 401.15.

68 Id.

69 40 C.F.R. § 116.4; CRS Report R45998, Contaminants of Emerging Concern Under the Clean Water Act, by Laura Gatz

(2021).

70 EPA, Initial List of Hazardous Air Pollutants with Modifications, https://www.epa.gov/haps/initial-list-hazardous-airpollutants-modifications (last updated Nov. 5, 2025); 40 C.F.R. §§ 63.60-63.64.

71 40 C.F.R. part 261; EPA, Defining Hazardous Waste: Listed, Characteristic and Mixed Radiological Wastes,

https://www.epa.gov/hw/defining-hazardous-waste-listed-characteristic-and-mixed-radiological-wastes (last updated Dec. 17,

2024).

72 E.g., 33 U.S.C. § 1321(b); 42 U.S.C. § 6928.

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Scope of Liability

Liability under CERCLA is retroactive, strict, and joint and several.73 Retroactive liability means that

parties may be liable for the release of hazardous substances prior designation and prior to CERCLA’s

enactment in 1980. Under CERCLA’s strict liability framework, a party may be liable regardless of

whether it was negligent. Under joint and several liability, any single party may be liable for all cleanup

costs at a site if the harm is indivisible, even if other parties also contributed to the contamination.

PRPs in the listed categories are liable under CERCLA for cleanup costs incurred by the U.S. government

or a state or tribe that are “not inconsistent” with the National Contingency Plan (NCP), the regulations

governing response actions taken under CERCLA.74 This means that after a government or private party

incurs cleanup costs, it may sue one or more PRPs under CERCLA to recover those costs. Those PRPs, in

turn, often have the right under CERCLA to seek contribution from any other PRPs, and may seek to join

them as additional parties to the same CERCLA action. These actions are described in more detail

below.75 Although each of those PRPs is jointly and severally responsible for all of the applicable cleanup

costs, this liability framework allows many parties that are potentially liable for the contamination at a

given site to seek an equitable allocation of those costs in a single litigation. This framework is also

intended to encourage capable parties to carry out response actions even before liability is settled, and to

ensure that response actions take place even if some PRPs are no longer available to contribute.

PRPs are also liable for injury to natural resources, meaning that they must either restore natural resources

that are injured as a result of a release or pay for restoring or replacing the injured or lost natural

resources.76 Unlike claims for cleanup costs, claims for natural resource damages may be brought only by

federal, state, or tribal trustees.77 Additionally, PRPs may be liable for the cost of natural resource damage

assessments and federal public health studies at release sites.78

CERCLA and its liability framework largely focus on cleanup actions and on the costs incurred for those

actions. The scope of liability under CERCLA does not include product liability, liability for personal

injury or property damages, or health effects or medical costs resulting from a release. Such claims may

be available under state law, including common law. Additionally, the Federal Tort Claims Act authorizes

some tort claims against the U.S. government, but not when claims implicate government actions

involving the exercise of judgment or choice.79

73 See EPA, Superfund Liability, https://www.epa.gov/enforcement/superfund-liability (last updated Apr. 10, 2025).

74 42 U.S.C. § 9607(a).

75 See Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 161–63 (2004); United States v. Atl. Research Corp., 551 U.S.

128, 131–33 (2007).

76 42 U.S.C. § 9607(a).

77 Id. § 9607(f).

78 Id. § 9607(a).

79 28 U.S.C. §§ 1346, 2680(a). The United States has invoked the discretionary function exemption to the Federal Tort Claims

Act to argue that it is not liable in pending multidistrict litigation challenging the United States military’s use and handling of

aqueous film forming foam (AFFF), which allegedly resulted in PFAS contamination of groundwater. See United States of

America’s Memorandum of Law in Support of Its Omnibus Motion to Dismiss Pursuant to Federal Rule of Civil Procedure

12(b)(1), In re Aqueous Film-Forming Foams Products Liability Litigation, MDL No. 2:18-mn-2873-RMG (D.S.C. Feb. 26,

2024), ECF No. 4548. On February 27, 2025, the court declined to dismiss all of the Federal Tort Claims Act claims, holding that

site-specific, material facts were still in dispute. In a separate order issued the same day, the court dismiss failure to warn claims

brought by four dairy farms, but declined to dismiss other tort claims brought by those plaintiffs. Orders, In re Aqueous FilmForming Foams Products Liability Litigation, MDL No. 2:18-mn-2873-RMG (D.S.C. Feb. 27, 2025), ECF Nos. 6728, 6730. For

additional information on the Federal Tort Claims Act, see CRS Report R45732, The Federal Tort Claims Act (FTCA): A Legal

Overview, by Michael D. Contino and Andreas Kuersten (2023).

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Federal Enforcement Mechanisms

The scope of EPA’s enforcement authority under CERCLA is narrower than its response authority.

Although CERCLA authorizes federal actions to respond to a release of pollutants, contaminants, and

hazardous substances, the statute only authorizes EPA to compel a party to pay for or perform a response

action if that party caused or contributed to a release of a hazardous substance. The designation of PFOA

and PFOS as hazardous substances means that EPA may now use its enforcement authority to compel

parties to clean up or finance the cleanup of contamination of those substances.

CERCLA establishes three mechanisms that EPA may use to enforce liability under the statute—that is, to

require parties to bear the response costs for which CERCLA makes them liable. First, EPA can compel

PRPs to perform a cleanup. Section 106(a) authorizes EPA to issue a unilateral administrative order, or to

seek a judicial order, requiring a PRP to take actions to address “imminent and substantial endangerment

to the public health or welfare or the environment” resulting from a release or threatened release of a

hazardous substance.80 CERCLA also authorizes fines and punitive damages for noncompliance with such

an order.81 If a party complies with an order and can establish that it is not liable under CERCLA or that

the required cleanup actions were arbitrary and capricious, it may seek reimbursement from the

Superfund Trust Fund.82 Alternatively, a liable party may seek to recover response costs from other PRPs,

as explained below.

Second, EPA can conduct a cleanup itself and seek to recover its response costs from one or more PRPs

pursuant to Section 107(a).83 These lawsuits are known as “cost recovery” actions. EPA typically pursues

cost recovery after a removal action or one of its phases is completed.84 States and tribes may also pursue

cost recovery under Section 107(a). Cleanup actions must be “not inconsistent” with the NCP for the costs

to be recoverable by the United States, states, or tribes.85 Prior to seeking cost recovery from a PRP in

court, EPA generally sends a written demand letter to that PRP that includes information about the site,

the response action, costs already incurred or to be incurred, and a demand for payment.86

Finally, EPA can enter into a negotiated settlement with PRPs to perform some or all of the cleanup.

CERCLA authorizes EPA to enter into an agreement with a PRP to allow the PRP to conduct or finance a

response action if EPA determines that the PRP will do so properly and promptly.87 EPA’s preference is to

seek to resolve liability through negotiated settlement agreements instead of pursuing a Section 106 order

or a cost recovery action.88 Consistent with the statute’s directive to facilitate settlement “[w]henever

practicable and in the public interest” to expedite effective cleanups, and minimize litigation, the majority

80 42 U.S.C. § 9606(a).

81 Id. § 9606(b).

82 Id.

83 Id. § 9607(a).

84 See Office of Solid Waste and Emergency Response, EPA, OSWER Directive No. 9832.3-1A, Cost Recovery Actions/Statute

of Limitations 2 (1987).

85 42 U.S.C. § 9607(a).

86 See Office of Solid Waste and Emergency Response, EPA, OSWER Directive No. 9832.18, Written Demand for Recovery of

Costs Incurred Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 5–6, 8–9 (1991).

87 42 U.S.C. §§ 9604(a), 9622(a).

88 EPA, Negotiating Superfund Settlements, https://www.epa.gov/enforcement/negotiating-superfund-settlements (last updated

June 2, 2025).

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of cleanups are resolved through negotiated agreements.89 All settlement agreements under CERCLA

must be in the public interest and consistent with the NCP.90

Under Section 122, voluntary settlement agreements may include a covenant not to sue, which limits a

PRP’s future liability to the United States related to the release or threatened release.91 Additionally,

parties to voluntary settlement agreements receive protection from other types of CERCLA lawsuits, as

described below. A settlement with one PRP does not preclude EPA from taking action under Sections 106

or 107 with respect to other PRPs.92

Some parties have unique circumstances that affect EPA’s settlement procedures. For example, Section

122(g)(1) of CERCLA directs EPA to negotiate expedited settlements “[w]henever practicable and in the

public interest” with parties that contributed a relatively small amount of wastes to a site.93 EPA maintains

policies and streamlined model settlement documents that apply specifically to these de minimis

contributors.94 For other categories of parties, EPA may exercise its discretion and decline to pursue

enforcement, as described below and as EPA has specifically exercised in the context of PFAS.

Suits by Private Parties to Recoup Cleanup Costs95

Although CERCLA allows any one party to be held liable for all cleanup costs even if other parties also

contributed to contamination at a site, the statute also allows private parties to recoup their cleanup costs

from other PRPs through two separate mechanisms. First, when a private party incurs costs, it may sue

under Section 107(a) to recover from another PRP all costs that are necessary and consistent with the

NCP.96

Second, when a private party is sued under Section 106 or 107(a) or has resolved its liability to the United

States or a state for some or all of a response action, it may then assert a claim or counterclaim under

Section 113(f) to require other PRPs to bear an equitable share of the response costs.97 Claims under

89 See Atl. Richfield Co. v. Christian, 140 S. Ct. 1335, 1355 (2020) (describing settlements as “the heart” of CERCLA and noting

that EPA’s efforts to negotiate settlement agreements and issue cleanup orders account for approximately 69 percent of cleanup

work underway as of 2020).

90 42 U.S.C. § 9622(a).

91 Id. § 9622(c)(1).

92 Id. § 9622(c)(2).

93 Id. § 9622(g)(1).

94 See EPA, Revised Settlement Policy and Contribution Waiver Language Regarding Exempt De Micromis and Non-Exempt De

Micromis Parties (Nov. 6, 2002), https://www.epa.gov/sites/default/files/2013-09/documents/wv-exmpt-dmicro-mem.pdf; Office

of Waste Programs Enforcement, EPA, OSWER Directive No. 9834.7-1D, Streamlined Approach for Settlements with De

Minimis Waste Contributors under CERCLA Section 122(g)(1)(A) (1993); EPA, De Minimis Contributor Consent Decree,

https://cfpub.epa.gov/compliance/models/view.cfm? model_ID=538 (last revised Mar. 15, 2023); see also EPA, Unique Parties

and Superfund Liability, https://www.epa.gov/enforcement/unique-parties-and-superfund-liability (last updated Oct. 5, 2023).

95 In addition to the cost recovery and contribution claims allowed under Sections 107(a) and 113(f) of CERCLA, Section 310,

CERCLA’s citizen suit provision, allows “any person” to file a lawsuit against any person, including the U.S. government and

“any other governmental instrumentality or agency . . . who is alleged to be in violation of any standard, regulation, condition,

requirement, or order which has become effective” pursuant to CERCLA.” 42 U.S.C. § 9659(a)(1). It also authorizes suits against

the U.S. government for failure to perform a nondiscretionary duty under the statute. Id. § 9659(a)(2). Citizen suits may be used

to challenge the adequacy of a CERCLA cleanup, but they do not provide a mechanism for determining that an entity is liable for

response costs as a PRP. Additionally, Section 113(h) limits the filing of a citizen suit until after a cleanup is completed, and

parties may not challenge a removal action at a site where a remedial action is planned. Id. § 9613(h).

96 United States v. Atl. Research Corp., 551 U.S. 128, 141 (2007).

97 42 U.S.C. § 9613(f)(1), (f)(3)(B). Congress added an explicit right of contribution to CERCLA in the Superfund Amendments

and Reauthorization Act of 1986 (SARA). Pub. L. No. 99-499, § 113(b), 100 Stat. 1613, 1647 (1986). Prior to SARA’s

enactment, courts had inferred an implied right of contribution as a corollary to the joint and several liability scheme imposed

(continued...)

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Section 113(f) are generally referred to as contribution claims. Cost recovery and contribution actions are

mutually exclusive. A party that may bring a Section 113(f) contribution action must proceed under

Section 113(f); the party is precluded from proceeding with a cost recovery action under Section 107(a).98

Section 113(f) specifies that a court resolving contribution claims “may allocate response costs among

liable parties using such equitable factors as the court determines are appropriate.”99 The most commonly

considered factors in an equitable allocation relate to the degree to which the contamination and cleanup

costs are attributable to each party’s actions, the nature and amount of the hazardous substances involved,

the extent of each party’s culpability, and the degree to which each party benefited from the disposal.100

Section 113(f) also protects a party that has resolved its CERCLA liability to the United States or a state

in a settlement.101 The party cannot be held liable for contribution claims by other PRPs regarding matters

addressed in that settlement. This is referred to as contribution protection. Other PRPs that are not parties

to the settlement do not receive contribution protection unless the agreement specifically provides for

their liability to be discharged, but their potential liability is reduced by the amount of the settlement.102

The question of whether a specific contribution claim relates to a “matter addressed” in a prior settlement

depends on the specific terms of the settlement agreement. In evaluating whether contribution claims are

barred against a settling PRP, courts have considered the hazardous substance at issue in the settlement,

the location of the site, the time frame covered by the settlement, and the cost of the cleanup.103

Defenses to and Limitations on Liability

In addition to the various exclusions to the elements of CERCLA liability described above, CERCLA

establishes defenses to and limitations on liability associated with certain kinds of releases or parties that

further circumscribe the scope of liability under the statute. Section 107(b) of CERCLA provides defenses

to liability where an otherwise liable party can establish that a release or threat of release and resulting

damages were caused solely by (1) an act of God; (2) an act of war; (3) an act or omission of a third party

with whom the defendant has no contractual relationship, where the defendant exercised due care and

took precautions against the third party’s foreseeable acts or omissions and their consequences; or (4) any

combination of the three circumstances listed above.104 Other subsections of Section 107 provide

exemptions and protections for parties who meet certain criteria, including municipal solid waste

under Section 107(a). E.g., United States v. New Castle Cnty., 642 F. Supp. 1258, 1268–69 (D. Del. 1986); Colorado v. Asarco,

Inc., 608 F. Supp. 1484, 1490–91 (D. Colo. 1985); United States v. Conservation Chem. Co., 619 F. Supp. 162, 214–15 (W.D.

Mo. 1985); United States v. Wade, 577 F. Supp. 1326, 1338 (E.D. Pa. 1983); United States v. Ottati & Goss, Inc., 630 F. Supp.

1361, 1395 (D.N.H. 1985). Congress intended the 1986 amendments to “[clarify] and [confirm]” the right of PRPs to seek

contribution from other PRPs. S. REP. NO. 99-11, at 44 (1985).

98 See Atl. Research, 551 U.S. at 139; Whittaker Corp. v. United States, 825 F.3d 1002, 1007 (9th Cir. 2016) (“[E]very federal

court of appeals to consider the question . . . has said that a party who may bring a contribution action for certain expenses must

use the contribution action, even if a cost recovery action would otherwise be available.”).

Cost recovery actions under Section 107(a) and contribution actions under Section 113(f) are subject to differing statutes of

limitations. See 42 U.S.C. § 9613(g)(2)(A)–(B) (six-year statute of limitations for cost recovery actions), 9613(g)(3)(B) (threeyear statute of limitations for contribution actions).

99 42 U.S.C. § 9613(f)(1).

100 See, e.g., Env’t Transp. Sys., Inc. v. ENSCO, Inc., 969 F.2d 503, 508 (7th Cir. 1992) (describing the six “Gore” factors,

named for an amendment proposed by Rep. Al Gore identifying factors to be considered in apportioning costs).

101 42 U.S.C. § 9613(f)(2).

102 Id.

103 E.g., Akzo Coatings, Inc. v. Aigner Corp., 803 F. Supp. 1380, 1385 (N.D. Ind. 1992); United States v. Union Gas Co., 743 F.

Supp. 1144, 1154 (E.D. Pa. 1990).

104 Id. § 9607(b).

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generators, recyclers, service station dealers, cleanup contractors, contiguous landowners, bona fide

prospective purchasers, lenders and fiduciaries, and parties that are not responsible for contamination but

volunteer to help with cleanup.105

This testimony will focus on a discretionary limitation on EPA’s enforcement authority as well as one

statutory exemption and one statutory limitation that appear to be most relevant in the PFAS context.

Depending on the circumstances of a specific release and the parties involved in it, other defenses and

limitations could also apply.

EPA’s Enforcement Discretion

Response actions and cost recovery under CERCLA are discretionary. CERCLA does not require EPA to

take enforcement action with respect to every release of a hazardous substance over which the agency has

response and enforcement authority. EPA may exercise its enforcement discretion on a site-by-site basis to

pursue, or decline to pursue, cost recovery against PRPs that meet the statutory criteria for liability. When

EPA does take action with respect to an individual site, the agency has discretion to pursue enforcement

against one, some, or all PRPs, and to select which enforcement mechanism—a negotiated voluntary

settlement agreement, a Section 106 order, or a Section 107(a) cost recovery action—to apply. In some

instances, EPA has issued written guidance describing its enforcement discretion policy with respect to

specific categories of sites or PRPs.

On April 19, 2024, EPA issued an enforcement discretion and settlement policy explaining how the

agency would exercise its enforcement discretion under CERCLA in matters involving PFAS.106 EPA

stated that it “intends to focus its enforcement efforts on entities who significantly contributed to the

release of PFAS contamination into the environment, including parties that manufactured PFAS or used

PFAS in the manufacturing process, federal facilities, and other industrial parties.”107 As a result, the

agency explained that it “does not intend to pursue otherwise potentially responsible parties where

equitable factors do not support seeking response actions or costs under CERCLA.”108 EPA identified five

categories of entities against which it did not intend to pursue PFAS response actions or costs under

CERCLA:

•

•

•

•

•

Community water systems and publicly owned treatment works,

Municipal separate storm sewer systems,

Publicly owned or operated municipal solid waste landfills,

Publicly owned airports and local fire departments, and

Farms where biosolids are applied to the land.109

EPA also identified several equitable factors that could form the basis for extending enforcement

discretion to additional parties not in one of those five categories:

•

•

Whether an entity is a state, local, or tribal government or works on behalf of or conducts

services that otherwise would be performed by a state, local, or tribal government;

Whether an entity performs certain defined public service roles related to drinking water,

wastewater, and waste and pollution management;

105 Id. §§ 9607(p), 9614(c), 9619(a), 9607(q), 9607(r), 9607(n), 9607(d).

106 EPA PFAS Enforcement Discretion and Settlement Policy, supra note 8.

107 Id. at 6.

108 Id. at 3.

109 Id. at 6–8.

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Whether an entity manufactured PFAS or used PFAS as part of an industrial process; and

Whether and to what degree an entity is actively involved in the use, treatment, storage,

disposal, or transport of PFAS.110

Additionally, EPA described how it could use settlement agreements to protect entities from liability and

lawsuits brought by other parties. First, EPA stated that it would seek in its settlements with major PRPs

to secure a waiver of rights providing that the settling PRP cannot pursue contribution claims against

certain non-settling parties.111 As noted above, absent such a waiver, the settling PRP could pursue

contribution claims against those parties.

Second, as to parties that fall into one of the categories of entities enumerated in the memo or for which

the enumerated equitable factors do not support enforcement against them for PFAS response actions

under CERCLA, EPA stated that it may enter into settlement agreements with those parties to provide

them with contribution protection.112 Consistent with Section 113 of CERCLA, PRPs that resolve their

liability to the United States through a CERCLA settlement with EPA would not be liable for third-party

contribution claims for matters addressed in that settlement.113

Finally, EPA noted that parties may qualify for de minimis or de micromis settlements in certain situations

or for limited “ability to pay” settlements “where payment could result in undue financial hardship for the

PRP.”114

Although EPA did not refer to its enforcement discretion memorandum when it announced its intent to

retain the 2024 designations, the memo appears to remain in effect. CRS has not identified instances

where EPA either declined to take enforcement action or entered into a settlement agreement consistent

with the goals identified in the policy.

Enforcement discretion is distinct from a statutory exemption from liability in multiple ways. While

EPA’s exercise of enforcement discretion may allow some parties that would ordinarily be vulnerable to

liability to avoid paying for some or all of a response action, the agency’s decision to exercise its

discretion and decline to pursue enforcement does not alter the scope of liability defined in the statute.115

Additionally, EPA is not bound to apply an enforcement discretion policy uniformly and may deviate

from it—such as for parties that fail to cooperate with the agency or significantly contribute to the spread

of significant quantities of PFAS contamination, or in situations presenting an imminent and substantial

endangerment to public health or the environment—or subsequently modify or revoke it.116

Furthermore, EPA’s enforcement discretion only applies to EPA’s decision not to pursue enforcement

against PRPs. States, tribes, and private parties may seek cost recovery or contribution against a PRP even

if EPA does not. A PRP is not entitled to contribution protection unless it has resolved its liability to the

United States or a state through a settlement. Therefore, a discretionary decision by EPA not to pursue

enforcement against particular parties may leave that party vulnerable to contribution claims by third

110 Id. at 8–9.

111 Id. at 9.

112 Id.

113 42 U.S.C. § 9613(f)(2).

114 EPA PFAS Enforcement Discretion and Settlement Policy, supra note 8, at 9–10.

115 See Kelley v. EPA, 15 F.3d 1100, 1107–08 (D.C. Cir. 1994) (holding that “courts and not EPA [are] the adjudicator of the

scope of CERCLA liability” and vacating EPA rule limiting CERCLA liability for secured creditors).

116 EPA PFAS Enforcement Discretion and Settlement Policy, supra note 8, at 10. See, e.g., Ass’n of Flight Attendants-CWA,

AFL-CIO v. Huerta, 785 F.3d 710, 716 (D.C. Cir. 2015) (explaining that a policy statement explaining how an agency “will

exercise its broad enforcement discretion . . . under some extant statute or rule” is “binding on neither the public nor the agency,

and the agency retains the discretion and the authority to change its position . . . in any specific case”).

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parties, though EPA’s stated policy of using settlement agreements to provide contribution protection

appears intended to address this potential outcome.

A non-federal or private party seeking CERCLA cost recovery or contribution against an entity covered

by an EPA enforcement discretion policy would still need to meet the requirements to establish liability:

that a release or threatened release of a hazardous substance caused the incurrence of response costs, and

that the entity qualifies as a PRP under the statute. To the extent EPA undertakes fewer cleanups as a

result of its PFAS enforcement policy, there may be fewer circumstances giving rise to the requisite

response costs, unless states, tribes, local governments, or private parties choose to clean up PFAS

contamination that EPA has declined to address.

Federally Permitted Releases

Section 107(j) of CERCLA provides an exemption to CERCLA liability for response costs or damages

resulting from a federally permitted release.117 In general, the statute defines “federally permitted release”

as a release or discharge that is in accordance with a permit issued under an enumerated list of federal

statutes, including the CWA, RCRA, and the CAA.118 Releases or discharges that are potentially relevant

in the PFAS context include but are not limited to the following:

•

•

•

•

•

Discharges in compliance with permits under Section 402 of the CWA (i.e., National

Pollutant Discharge Elimination System (NPDES) permits);

Discharges resulting from circumstances identified and reviewed and made part of the

public record with respect to a NPDES permit and subject to a condition of such permit;

Continuous or anticipated intermittent discharges from a point source, identified in a

NPDES permit or permit application, which are caused by events occurring within the

scope of relevant operating or treatment systems;

The introduction of any pollutant into a publicly owned treatment works when the

pollutant is specified in and in compliance with applicable pretreatment standards of

Section 307(b) or (c) of the CWA; and

Releases in compliance with a legally enforceable final permit issued pursuant to Section

3005(a) through (d) of RCRA from a hazardous waste treatment, storage, or disposal

facility when such permit specifically identifies the hazardous substances and satisfies

other conditions.

Under Section 107(j), recovery for response costs or damages resulting from a federally permitted release

“shall be pursuant to existing law in lieu of” CERCLA.119 By its express terms, Section 107(j) does not

modify any obligations or liability under other state or federal law, including common law, for harm

resulting from a release or for the costs of cleaning up a hazardous substance. If another statute or

common law provides a cause of action associated with a federally permitted release, that cause of action

remains available even though CERCLA does not.

Some of the categories of industrial operators that have expressed concerns regarding their liability in the

event of a PFAS hazardous substance designation likely have permits under one or more of the federal

117 Id. § 9607(j).

118 Id. § 9601(10). The definition includes “any emission into the air subject to a permit or control regulation under” specific

provisions of the Clean Air Act. Id. § 9601(10)(H) (emphasis added). A federal court of appeals has distinguished this language

from the sections of the definition that refer to discharges in compliance with permits issued under other laws, concluding that a

release from a permitted facility that did not comply with relevant Clean Air Act permits was nevertheless “federally permitted”

for the purposes of CERCLA’s reporting requirements. Clean Air Council v. U.S. Steel Corp., 4 F.4th 204 (3d Cir. 2021).

119 42 U.S.C. § 9607(j).

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environmental statutes identified in the definition of “federally permitted release.” For example,

municipal wastewater treatment plants would be subject to the requirements of a NPDES permit issued by

EPA or a state. Whether a party’s PFAS discharges constituted a federally permitted release would depend

on the specific permits issued to that party. If a CWA permit issued by EPA or a state imposed PFASspecific requirements, a court evaluating the applicability of the federally permitted release exemption

would consider whether the PFAS discharge complied with the terms of the permit. Similarly, if EPA

issued pretreatment standards for PFAS, a court would consider whether a facility’s discharges to publicly

owned treatment works were specified in and in compliance with applicable pretreatment standards. Some

states with delegated CWA permitting authority have issued permits to industrial operators that include

PFAS discharge limits.120

Somewhat less clear is whether a discharge of a designated PFAS from an entity that is permitted under

the CWA could constitute a federally permitted release if the permit does not specify effluent limits or

pretreatment standards specifically for discharges of PFAS. It is also less clear whether a discharge would

be a federally permitted release if the permit specifies only monitoring requirements or best management

practices for a designated PFAS. Currently, EPA has not specified discharge standards for PFAS under the

CWA, whether in nationally applicable standards for categories of dischargers or in individual permits.

EPA has indicated, however, that it plans to develop effluent limitation guidelines for PFAS manufacturers

and metal finishers, and to propose a rule that would require NPDES permit applications to address

monitoring and reporting of PFAS.121 Once those rules are finalized, their implementation in permits

could result in additional releases of PFAS qualifying as federally permitted releases.

Additionally, future regulation of PFAS under RCRA could affect the applicability of the federally

permitted release exception to releases in compliance with hazardous waste permits issued pursuant to

that statute. In February 2024, EPA proposed to list nine PFAS as “hazardous constituents” under

RCRA.122 Such a listing would not make those PFAS or the wastes containing them hazardous wastes

pursuant to the statute, but would serve as a building block for potential future regulation of PFAS as a

RCRA listed hazardous waste.123 This is because one of the pathways for listing a solid waste as a

hazardous waste is if the solid waste contains a hazardous constituent and the EPA Administrator

concludes that the waste is “capable of posing a substantial present or potential hazard to human health or

the environment when improperly treated, stored, transported or disposed of, or otherwise managed.”124 If

wastes containing PFAS were subsequently regulated as RCRA listed hazardous wastes, releases in

compliance with RCRA hazardous waste permits issued pursuant to that statute could be considered

federally permitted releases under CERCLA in some circumstances.

Limitation on EPA’s Enforcement Authority for State-Law Responses

The 2002 amendments to CERCLA provide a statutory limit to the sites over which EPA may exercise its

enforcement authority. Section 128(b) bars EPA from taking enforcement action under Sections 106(a) or

107(a) of CERCLA at certain sites where there is or has been a response action undertaken in pursuant to

120 See, e.g., Press Release, North Carolina Dep’t of Env’t Quality, DEQ Approves Permit to Reduce PFAS Contamination in the

Cape Fear River (Sept. 15, 2022), https://www.deq.nc.gov/news/press-releases/2022/09/15/deq-approves-permit-reduce-pfascontamination-cape-fear-river.

121 EPA, Administrator Zeldin Announces Major EPA Actions to Combat PFAS Contamination (Apr. 28, 2025),

https://www.epa.gov/newsreleases/administrator-zeldin-announces-major-epa-actions-combat-pfas-contamination; Office of

Information and Regulatory Affairs, Office of Management and Budget, Unified Agenda, PFAS Requirements in NPDES Permit

Applications, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202504&RIN=2040-AG34 (last visited Nov. 15,

2025).

122 Listing of Specific PFAS as Hazardous Constituents, Proposed Rule, 89 Fed. Reg. 8606 (Feb. 8, 2024).

123 Id. at 8609.

124 See 40 C.F.R. § 261.11 (describing pathways for listing solid waste as a hazardous waste under RCRA).

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a state’s cleanup authorities.125 Similar to EPA’s enforcement discretion policy, to the extent Section

128(b) limits EPA’s ability to enforce CERCLA liability arising from PFAS contamination, it may serve to

limit the number of sites that could give rise to a private contribution claim under CERCLA. Moreover,

where a party has recovered costs, damages, or claims under state law, Section 114(b) bars recovery under

CERCLA for the same costs, damages, or claims.126

In states with mini-Superfund laws that allow for remediation and liability associated with PFAS

contamination, some cleanups are now proceeding under those state laws,127 which would bar federal

enforcement action under CERCLA at those sites. CERCLA cost-recovery or contribution claims for

which a party has already recovered costs would also be barred under Section 128(b) of CERCLA.

Accordingly, to the extent PFAS contamination is addressed under state law, Section 128(b) could limit

both the sites at which EPA undertakes a cleanup and the ability of any party to recoup cleanup costs

pursuant to CERCLA.

Recent PFAS Litigation Under CERCLA

As noted above, the scope of financial liability under CERCLA is limited to response costs, natural

resource damages, natural resource damage assessments, and federal public health studies.128 While the

2024 designation of PFOA and PFOS makes CERCLA’s liability framework available where the other

preconditions to liability are met, other legal pathways remain open for recovering certain kinds of costs

related to PFAS contamination.

CRS has not identified instances subsequent to the April 2024 designation in which EPA has taken

enforcement action under CERCLA against a PRP related to cleanup of PFOA or PFOS contamination.129

Litigation under other laws and between PFAS manufacturers, entities that used PFAS in their

manufacturing processes, municipal governments, water utilities and other passive receivers, and owners

of contaminated property has been ongoing for several years. These lawsuits have asserted a number of

claims under state tort law, state “mini-CERCLA” laws, and other federal and state laws, and thus are not

premised on the designation of PFAS as hazardous substances under CERCLA. While the 2024

designation may provide another cause of action in some circumstances, it does not necessarily increase

the amount of financial liability a party may face. This is because CERCLA’s “double recovery” provision

prohibits “compensation for the same removal costs or damages or claims” under CERCLA that a party

has already received under any other state or federal law, as well as compensation for removal costs or

125 42 U.S.C. § 9628(b)(1). EPA retains some enforcement authority, including where a state has requested federal assistance in

the response action, there is migration of contamination across state lines or onto federal property, an imminent and substantial

endangerment to public health or welfare or the environment necessitates further cleanup, or newly discovered information

indicates that further remediation is necessary to protect public health or welfare or the environment. Id. § 9628(b)(1)(B).

126 Id. § 9614(b). Section 114(b) also bars recovery under state law or any other federal law for costs, damages, or claims for

which a party has already been compensated under CERCLA. Id.

127 See POLLACK ET AL., supra note 32, at 102–07.

128 CRS In Focus IF11790, Liability Under the Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA), by Kate R. Bowers (2021).

129 EPA has taken action to address PFAS contamination under other statutory authorities that are not predicated on the April

2024 CERCLA hazardous substance designation. For example, in May 2024, EPA issued an order pursuant to Section 1431 of

SDWA directing the United States Air Force and the Arizona Air National Guard to address PFAS contamination in drinking

water at the Tucson International Airport Area Superfund Site. See Emergency Administrative Order for Response Action, In the

Matter of The United States Air Force and Arizona National Guard, Docket No. PWS-AO-2024-10 (May 29, 2024). In October

2024, the Air Force agreed to take several actions, including under CERCLA, to resolve the dispute with EPA. Letter from Dr.

Ravi Chaudhary, Assistant Secretary of the Air Force, Energy, Installations & Environment, to David Uhlmann, Assistant

Administrator, Office of Enforcement & Compliance Assurance, EPA (Oct. 21, 2024); Letter from Amy Miller-Bowen, Director,

Enforcement and Compliance Assurance, EPA Region 9, to Michelle Brown, Director, Environmental Policy and Programs,

Office of the Deputy Assistant Secretary of the Air Force (Oct. 21, 2024).

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damages or claims under any other federal or state law that a party has already received under

CERCLA.130

In some PFAS-related cases that were pending before the 2024 designation, plaintiffs have amended their

complaints to add claims under CERCLA. One such set of cases is the AFFF multidistrict litigation

(MDL), a group of more than 10,000 suits that have been consolidated before a single court. In general,

the plaintiffs allege that AFFFs contaminated groundwater near military bases, airports, and other sites

where they were used to extinguish liquid fuel fires, and that the plaintiffs incurred personal injury,

property damage, other economic losses, and a need for medical monitoring as a result.131 The plaintiffs

allege claims against PFAS manufacturers as well as against the United States government.

Some plaintiffs in the AFFF multidistrict litigation have added CERCLA claims to their complaints. For

example, on July 8, 2024, New Mexico filed an amended complaint against the United States, the U.S.

Air Force, and the U.S. Department of the Army in the ongoing litigation.132 New Mexico had already

asserted claims against the United States under RCRA and the New Mexico Hazardous Waste Act. The

amended complaint adds a CERCLA cost recovery claim against the federal defendants, alleging that

New Mexico has incurred more than $3,000,000 in response costs and more than $140,000 in natural

resource damage assessments and will incur future costs of at least $6,495,000 and natural resource

damage assessments of at least $3,625,000.133 Similarly, Art and Renee Schaap, the owners of a New

Mexico dairy farm—who had already sued the United States under the Federal Tort Claims Act for

damages related to cleanup of PFAS contamination on their property—filed a complaint in the MDL

seeking to hold the United States liable for response costs under CERCLA.134

A suit by the City of Wausau, Wisconsin against Georgia-Pacific, LLC and other facilities that used PFAS

in their manufacturing processes was originally filed in the U.S. District Court for the Western District of

Wisconsin but was conditionally transferred to the AFFF MDL.135 Wausau has opposed the transfer, and

the Wisconsin case is stayed pending an order from the Judicial Panel on Multidistrict Litigation

regarding the transfer.

On September 8, 2025 (prior to EPA’s announcement that it intended to retain the 2024 designation), the

United States moved to hold all CERCLA claims in the MDL in abeyance while EPA reviewed the 2024

designation and in order to prevent double recovery under CERCLA.136 The court has not yet ruled on the

motion. The United States also moved to deny or defer ruling on the Schaaps’ motion for summary

judgment to allow for fact discovery, including with respect to the question of double recovery.137

Some other cases were newly filed subsequent to the 2024 designation but relate to contamination that has

already been the subject of other lawsuits. On December 9, 2024, the City of Dalton, Georgia—a

longtime center of carpet and flooring manufacturing, including stain- and soil-resistant carpets and floors

130 42 U.S.C. § 9614(b).

131 U.S. District Court, District of South Carolina, Aqueous Film-Forming Foams (AFFF) Products Liability Litigation, MDL No.

2873, https://www.scd.uscourts.gov/mdl-2873/index.asp (last visited Nov. 11, 2025).

132 Second Amended Complaint, New Mexico v. United States, No. 2:20-cv-02115 (MDL No. 2:18-mn-2873) (D.S.C. July 8,

2024).

133 Id. at 61–63.

134 Complaint, Schaap v. United States, No. 2:24-cv-07040 (MDL No. 2:18-mn-2873) (D.S.C. Dec. 5, 2024), ECF No. 1;

Plaintiffs’ Motion for Partial Summary Judgment on Liability and Recovery of CERCLA Responses Costs Incurred to Date,

Schaap v. United States, No. 2:24-cv-07040 (MDL No. 2:18-mn-2873) (D.S.C. June 25, 2025), ECF No. 7.

135 City of Wausau v. Georgia-Pacific, LLC, No. 3:25-cv-00004 (W.D. Wisc.).

136 United States’ Motion to Hold in Abeyance CERCLA Cost Recovery and Contribution Claims, In re: Aqueous Film-Forming

Foams Products Liability Litigation, MDL No. 2:18-mn-2873 (D.S.C. Sept. 8, 2025), ECF No. 7987.

137 Motion to Deny or Defer Ruling on Plaintiffs’ Motion for Partial Summary Judgment, Schaap v. United States, No. 2:24-cv07040 (MDL No. 2:18-mn-2873) (D.S.C. Sept. 8, 2025), ECF No. 11.

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manufactured with PFAS—filed a lawsuit against several PFAS manufacturers and carpet manufacturers

that used PFAS in their manufacturing processes.138 In addition to various state and tort law claims,

Dalton alleges that the defendants arranged for disposal, treatment, and/or transport for disposal or

treatment of PFAS at the city’s wastewater treatment system and therefore are liable for response costs

under CERCLA.139 Dalton has been a defendant in lawsuits arising from the discharge of PFAS by

Dalton’s wastewater facilities, which allegedly resulted in contamination of drinking water in other cities

in the area.140

On December 18, 2024, the State of Maryland sued W.L. Gore & Associates, a materials science company

that has used PFAS in its manufacturing processes.141 Prior to the CERCLA PFAS designation and to

Maryland’s suit, Gore was the defendant in a class action brought on behalf of residents in the area around

Gore’s facilities; that suit is still pending.142 In its complaint, Maryland alleges that PFAS (including

PFOA) from 13 of Gore’s manufacturing facilities entered the state’s environment, contaminated its

natural resources and drinking water, and put residents’ health at risk.143 Maryland asserts cost recovery

and contribution claims under Sections 107(a) and 113(g) of CERCLA, alleging that it has incurred and

will continue to incur response costs as a result of the release of PFAS at Gore’s facilities.144 With respect

to three of Gore’s facilities, Maryland also asserts that the contamination presents an imminent and

substantial endangerment to health and the environment such that injunctive relief is warranted under

RCRA, and that Gore violated RCRA by its open dumping of solid waste and hazardous waste.145 In

addition to claims under federal law, Maryland also alleges state tort-law claims including public

nuisance, trespass, negligence, and unjust enrichment.146 Maryland further alleges that Gore discharged

controlled hazardous substances, pollutants, and wastes in violation of state environmental laws.147 The

case is proceeding through discovery and the court has not issued a ruling on the merits or set a schedule

for dispositive motions.

Options for Congress

Should Congress determine that PFAS contamination presents unique concerns that merit a different

approach to liability, it has numerous options for addressing those concerns through statutory

138 City of Dalton v. 3M Co., No. 4:24-cv-00293 (N.D. Ga.).

139 First Amended Complaint at 36–37, City of Dalton v. 3M Co., No. 4:24-cv-00293 (N.D. Ga. Apr. 1, 2025), ECF No. 85.

140 See Johnson v. 3M Co., No. 420-cv-00008 (N.D. Ga.).

141 Complaint, Maryland v. W.L. Gore & Assocs., Inc., No. RDB-24-3656 (D. Md. Dec. 18, 2024), ECF No. 1. Maryland filed an

amended complaint on May 12, 2025. First Amended Complaint, Maryland v. W.L. Gore & Assocs., Inc., No. RDB-24-3656 (D.

Md. May 12, 2025), ECF No. 43.

142 See Wolf v. W.L. Gore & Assocs., Inc., No. 1:23-cv-00280 (D. Md.).

143 First Amended Complaint at 2, Maryland v. W.L. Gore & Assocs., Inc., No. RDB-24-3656 (D. Md. May 12, 2025), ECF No.

43.

144 Id. at 46–48.

145 Id. at 48–49.

146 Id. at 36–40, 49–51.

147 Id. at 40–45.

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amendments. While Congress has authorized previous exemptions from liability for certain types of

parties or in certain situations, Congress has not more broadly authorized exemptions from liability under

CERCLA for releases of specific hazardous substances.

Members have introduced various bills in the 118th and 119th Congresses to exempt agricultural operators,

solid waste management and compost facilities, water utilities, entities with fire suppression systems

using AFFF, airports, and some associated contractors from CERCLA liability under certain

circumstances.148 Additionally, Section 8 of the Promoting Efficient Review for Modern Infrastructure

Today Act (PERMIT Act) does not explicitly relate to PFAS but would amend the CWA’s permit shield

provision to provide that compliance with the conditions of a NPDES permit shall be considered

compliance with enumerated sections of the CWA with respect to discharges of pollutants for which

effluent limitations are included in the permit as well as some discharges for which an effluent limitation

is not included in the permit.149 If enacted, that provision of the PERMIT Act would potentially expand

the universe of PFAS discharges to which the CWA’s permit shield and CERCLA’s federally permitted

release exception would apply.

Congress could bar EPA from designating any additional PFAS as hazardous substances or amend

CERCLA to impose guardrails around the agency’s exercise of its designation authority. Alternatively,

Congress could direct EPA to designate additional PFAS as hazardous substances under CERCLA, thus

triggering the statute’s reporting and liability provisions for the release of those substances. Congress

could also direct EPA to take action with respect to PFAS under other statutes, thus triggering (or

foreclosing) the requirements imposed by those statutes.

Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff

to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of

Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of

information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.

CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United

States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,

as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the

permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

148 Agriculture PFAS Liability Protection Act of 2023, S. 1427, 118th Cong.; Resource Management PFAS Liability Protection

Act of 2023, S. 1429, 118th Cong.; Water Systems PFAS Liability Protection Act, S. 1430, 118th Cong. (2023); Fire Suppression

PFAS Liability Protection Act, S. 1432, 118th Cong. (2023); Airports PFAS Liability Protection Act, S. 1433, 118th Cong.

(2023); Water Systems PFAS Liability Protection Act, H.R. 1267, 119th Cong. (2025); S. Amdt. 3363 to S. 2296, 119th Cong.

(2019).

149 Promoting Efficient Review for Modern Infrastructure Today Act (PERMIT Act) § 8, H.R. 3898, 119th Cong. (2025).

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