PFOA and PFOS passive receivers

September 19, 2025

On September 17, 2025, the U.S. Environmental Protection Agency (EPA) announced the next steps regarding regulatory efforts to address the cleanup of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). In the press release, EPA Administrator Zeldin said, “…we will need new statutory language from Congress to fully address our concerns with passive receiver liability.”

CERCLA imposes broad, retroactive, and potentially costly strict liability on those who release hazardous substances to the environment. This liability can sometimes attach to entities that did not manufacture or generate the substance but received it in feedstocks, products, or landfilled waste. The EPA refers to these entities as “passive receivers.” Members of Congress received testimony and input from various industries, including private and municipal landfills, and passed it to the EPA, which intends to continue working with Congress. No workshops or additional input forums were announced.

The major concern for passive PFOA and PFOS contamination receivers, including local municipalities and service providers, is potentially passing decontamination costs onto ratepayers, taxpayers, and consumers. EPA will continue to collect information on its costs and benefits, but feels the best solution to this issue is a statutory fix to protect passive receivers from liability.

For now, EPA is retaining the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) hazardous substance designation for PFOA and PFOS and will initiate future rulemaking to establish a uniform framework governing the designation of hazardous substances under section 102(a) of CERCLA moving forward. The current rule mandates reporting of releases of one pound or more of PFOA or PFOS within 24 hours. It designates Perfluorooctanoic Acid (PFOA) and Perfluorooctane sulfonic Acid (PFOS) as CERCLA hazardous substances. See 42 U.S.C §9602; Docket EPA-HQ-OLEM-2019-0341.

According to the EPA, a CERCLA section 102(a) Framework Rule would provide a uniform approach to guide future hazardous substance designations, including how the agency will consider the costs of proposed designations. Section 102(a) gives the EPA authority to designate additional hazardous substances beyond those listed under the other statutes referenced in CERCLA (the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act, and the Toxic Substances Control Act). Once finalized, the 102(a) Framework Rule would provide a uniform approach for future designations.

In response to the EPA’s August 26, 2022, proposed rule to list PFOA and PFOS as CERCLA hazardous substances, numerous comments were submitted requesting that the final CERCLA HS rule include exemptions or similar liability relief for passive receivers that did not generate the chemicals – e.g., landfills, wastewater treatment facilities, and water supply systems.

Background

EPA’s May 8, 2024, final CERCLA HS rule did not provide an exemption. However, EPA’s April 19, 2024, Memorandum entitled “PFAS Enforcement Discretion and Settlement Policy Under CERCLA” outlines enforcement discretion considerations for the following entities:

(1) Community water systems and publicly owned treatment works (POTWs)

(2) Municipal separate storm sewer systems (MS4s);

(3) Publicly owned/operated municipal solid waste landfills;

(4) Publicly owned airports and local fire departments; and

(5) Farms where biosolids are applied to the land.

Despite the enforcement discretion policy, some passive receivers were disappointed that the agency did not provide stronger liability protection. Based on EPA’s September 2025 press release (above), EPA now plans to take a closer look at the issue, including the possibility of providing a statutory fix to protect passive receivers from liability.

If you have questions regarding this rule, please get in touch with SCS Engineers.