The EPA recently requested additional time from the D.C. Circuit Court of Appeals to prepare its response in a case challenging its final per- and polyfluoroalkyl substances (PFAS) Maximum Containment Levels (MCLs).
Petitioners and other respondents aren’t opposed to the request for additional time.
The case, American Water Works Association and Association of Metropolitan Water Agencies v. EPA, “which challenges EPA’s PFAS National Primary Drinking Water Regulation (89 Fed. Reg. 32532, April 26, 2024), has been in abeyance since February 2025,” according to Fox Rothschild LLP. “At that time, the EPA asked for a 60-day abeyance to allow incoming leadership—appointed under the new presidential administration—to review the contested rule. That pause was set to expire on April 8. 2025.
“EPA’s new request seeks an additional 30 days for leadership to continue reviewing the rule and determine its position in the litigation. As the agency noted in its request, continuing the abeyance would conserve judicial and party resources, and could potentially render further litigation unnecessary.”
The EPA made groundbreaking moves last spring in two PFAS regulations:
- The National Primary Drinking Water Rule (NPDWR) established the first-ever MCLs for PFAS in drinking water.
- The first Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substance listing was made for PFAS.
In the case, “water industry organizations argue EPA failed to base the PFAS MCLs on the best available science and that the limits are inadequate to protect public health,” notes Pillsbury Winthrop Shaw Pittman LLP. “Meanwhile, in Chamber of Commerce of the United States of America, et al v. EPA …, the U.S. Chamber of Commerce and other industry petitioners contend that EPA exceeded its authority in listing PFOA and PFOS as hazardous substances under CERCLA. They argue that EPA’s interpretation of the ‘substantial danger’ standard is overly broad and inconsistent with CERCLA’s intent. Additionally, they claim that the agency’s cost-benefit analysis is deficient under the Administrative Procedure Act (APA) because it fails to justify the significant liability and cleanup costs on imposed businesses. The cases have each been consolidated with related industry challenges, while environmental groups have intervened in both of the cases to argue in favor of EPA’s regulations.”
Analysts believe the requests for additional time signify the EPA’s intent to revise, rescind, or roll back these regulations.
Industry involved in Superfund cleanup efforts due to PFAS is advised to carefully monitor developments in PFAS regulations and litigation.
“The Superfund PFAS rule has already prompted states and other entities to file cost recovery claims under CERCLA Section 106,” reports Alston & Bird LLP. “Citing the Superfund PFAS rule as support, these claims seek to recover costs from the military and other potentially liable parties for PFAS cleanup. These include claims of PFAS contamination from firefighting foam, paper mills, landfills and manufacturing plant operations.
“If the rule is ultimately rescinded, it is unclear how those actions would proceed. But in the meantime, despite the uncertainty of the rule’s fate, more filings and claims in existing litigation can be expected while the rule remains in effect. … As long as the rule remains in effect, such efforts to shield certain parties or industries from the liabilities imposed by the rule may continue. Industries should closely monitor any updates from the EPA regarding the Superfund PFAS rule and PFAS regulatory strategy overall to determine the applicable risks and obligations.”