Two years of litigation over PFAS Superfund liability ended on Aug. 18, and the answer for anyone who excavates, hauls or disposes of soil is that the exposure is real and it isn’t going away.
A unanimous D.C. Circuit panel denied every petition for review in Chamber of Commerce v. EPA, No. 24-1193, upholding EPA’s 2024 rule designating PFOA and PFOS as hazardous substances under CERCLA. No vacatur, no remand. The rule stands as written.
What the court decided
Petitioners argued that CERCLA Section 102(a) requires a designated substance to pose more than a theoretical risk. The court read the statute independently, without deferring to EPA’s interpretation, and concluded the bar is lower than petitioners wanted: a substance need only pose a possibility of substantial danger.
That’s a narrow holding with wide consequences, because Section 102(a) is the gateway. Once a substance is through it, the whole CERCLA machinery attaches.
Why contractors are in the chain
CERCLA liability is famously indifferent to fault. It reaches current owners and operators, past owners and operators at the time of disposal, anyone who arranged for disposal, and transporters who selected the disposal site.
Hazardous-substance status means PFOA and PFOS can now anchor response actions and cost-recovery claims. EPA can compel cleanup, and EPA, states and private parties can pursue responsible parties for response costs. The construction activities that put a firm in that chain are ordinary ones: excavation and soil handling, off-site disposal of impacted media, demolition, dredging, and water and wastewater infrastructure work.
The Associated General Contractors of America was among the petitioners. Its challenge was rejected, and AGC’s own writeup calls the outcome disappointing for the industry.
The unresolved part is the one that matters day to day
EPA has issued an enforcement discretion policy saying it doesn’t intend to pursue certain parties, including some municipalities and passive receivers. A policy is not a statute, it binds no private plaintiff, and it can be withdrawn.
The genuinely open question is what to do with low-concentration PFAS soils. AGC took part in an EPA engagement session on managing and reusing them in May. There’s still no settled answer, and it’s the practical problem on any earthwork job near a former fire training area, airport, landfill or industrial site: the material has to go somewhere, and every receiving facility now has a reason to ask what’s in it.
What to do about it
Three things worth doing before the next dirt job:
- Treat PFAS as a due-diligence line item in pre-bid site assessment, not an environmental consultant’s afterthought.
- Read the disposal contract. Transporter liability attaches to selecting the site, so who picks the landfill matters.
- Check indemnity and insurance language. Pollution exclusions written before 2024 may not contemplate a substance that wasn’t a CERCLA hazardous substance when the policy was bound.
This lands alongside a separate stormwater rewrite. EPA has also proposed a new Construction General Permit and extended comment on it to Sept. 17. Between the two, the regulatory surface area on earthwork is expanding on the same jobs, and mass-excavation work like USACE’s Prado Dam spillway rebuild sits squarely in it.