Chevron Ruling Opens Doors in PFAS Superfund Suit, Lawyers Say

Parties challenging the EPA’s rule designating two PFAS and related chemicals to be hazardous Superfund substances have a greater chance to make their case following the US Supreme Court’s ruling that weakened agencies’ authority to interpret ambiguous statutory terms, attorneys say.

The attorneys, including a former Environmental Protection Agency official, said during an American Law Institute webinar Thursday that the high court ruling may impact recent litigation and regulatory developments affecting per- and polyfluoroalkyl substances (PFAS) and federal waste laws and regulations. The Loper Bright Enterprises v. Raimondo decision helped broaden regulatory challengers’ opportunities to fight federal agencies’ rules and enforcement efforts.

Loper overturned the 40-year-old Chevron doctrine that had directed federal courts to defer to reasonable agency interpretations of ambiguous or silent statutory provisions.

The US Chamber of Commerce’s recent list of issues it may raise regarding an EPA regulation illustrates some ambiguities that will likely require a judge’s guidance under the Loper ruling, said Walter Mugdan, an attorney who has retired from serving as the deputy regional administrator at EPA Region 2, headquartered in New York City.

Ambiguous CERCLA Terms

The chamber July 12 filed a nonbinding statement of issues in its opposition to the EPA’s final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) and related forms to be hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, (CERCLA), or Superfund law.

These issues include whether the EPA misinterpreted CERCLA when it designated PFOA and PFOS as hazardous substances. The question of statutory interpretation makes the Loper ruling relevant, Mugdan said.

The agency’s final rule concluded PFOA and PFOS met the statutory criteria for hazardous Superfund substances because the chemicals present “a substantial danger to the public health or welfare or the environment when released into the environment.”

If the EPA properly interpreted the scientific information about PFOA and PFOS, then those compounds would most likely be dangerous, Mugdan said. But that doesn’t answer whether they’re substantially dangerous, he said.

The agency has criteria it uses to decide when a situation is too risky, “but we have to hear from the courts,” he said.

And since the EPA’s regulation covered nearly 100 chemicals that are related to PFOA and PFOS, there’s a question about whether they all constitute substantial dangers, said Robert Fox, managing partner of Manko, Gold, Katcher & Fox LLP.

The term “public welfare” also is ambiguous because it’s not clear whether it takes into account the effects of the regulation’s costs, Fox said. Compliance costs could be staggering and put some waste water treatment plants or municipal solid waste facilities out of business, he said.

The EPA’s rule also is vulnerable because “this is the first time in the history of Superfund” that the agency designated chemicals as hazardous substances without first regulating them under other statutes that automatically add them to CERCLA’s list, Fox said. “This is a significant deviation from how Superfund has worked historically.”