Trump EPA Keeps PFOA and PFOS CERCLA Hazardous Substances Designation

Trump EPA Keeps PFOA and PFOS CERCLA Hazardous Substances Designation

The risks and opportunities EPA’s designation creates for Indiana companies and individuals

In a move surprising to some, on September 17, 2025, the EPA announced it is retaining the rule designating two types of per- and polyfluoroalkyl substances (PFAS), perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as CERCLA hazardous substances.[i] EPA published its final rule designating PFOA and PFOS on May 8, 2024, and the rule became effective on July 8, 2024.[ii] A court challenge to this final rule is pending in the U.S. Court of Appeals for the District of Columbia Circuit, but this article addresses the risks and opportunities EPA’s designation creates for Indiana companies and individuals.

1. Potential liability under CERCLA.

The designation of PFOA and PFOS as CERCLA hazardous substances creates potential liability and financial risk for all four categories of potentially responsible parties under CERCLA, namely: (1) current owners and operators of land contaminated with PFOA or PFOS; (2) former owners and operators at the time PFOA or PFOS were disposed; (3) generators and arrangers of PFOA or PFOS; and (4) transporters of PFOA or PFOS. To be clear, however, potential liability does not mean certain liability. For example, the Supreme Court has instructed that no CERCLA liability could attach to an entity “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.”[iii]

2. Potential liability under Indiana state law.

In addition to potential liability under CERCLA, this designation exposes companies and individuals to potential liability under an Indiana law called the Environmental Legal Action (“ELA”) for PFOA- and PFOS-contaminated land. This statute allows a person to sue those who “caused or contributed” to the release of a hazardous substance.[iv] Ind. Code § 13-30-9-2. Parties that successfully prosecute ELA claims can recover their cleanup costs and attorneys’ fees. Ind. Code § 13-30-9-3. Although the ELA statute does not expressly define “hazardous substance,” the Indiana Supreme Court said it is a “reasonable assumption” that CERCLA’s definition applies.[v] Thus, those who caused or contributed to PFOA or PFOS contamination in Indiana face potential liability for cleanup costs under the ELA. Additionally, they may also face liability under common law theories, like negligence, trespass, and nuisance.

3. Cost recovery opportunities.

If your property is positive for PFOA or PFOS, there are cost recovery opportunities. You can make a claim against your insurance company. This may result in the insurance company paying to clean up your land or paying to pursue litigation against those who caused the contamination. Although Indiana courts have yet to decide whether PFAS fall within the “pollution exclusion” contained in many insurance policies, Indiana courts have historically held that pollution exclusions are ambiguous and do not bar insurance coverage.[vi]

Another option is to sue those upstream parties ultimately responsible for PFOA and PFOS contamination, most notably, the chemical manufacturers. Certain PFAs manufacturers, including DuPont, settled PFAS-related drinking water claims for certain public water systems, and these manufacturers of PFAS will contribute $1.185 billion to a settlement fund.[vii] 3M, another PFAS manufacturer, settled its liability to public water systems for approximately $10 billion.[viii]

Further, for those being sued because of PFOA and PFOS contamination, insurance policies may provide a defense against those lawsuits. For instance, in a case before the Western District of North Carolina, which the Fourth Circuit Court of Appeals affirmed, the court granted summary judgment in defendant’s (the insured) favor and concluded defendant’s insurer needed to defend it against certain PFAS claims.[ix] Relatedly, the Northern District of California recently considered whether an insurer must defend its insured against claims relating to PFAS in its AFFF products.[x] The court concluded that the insured was entitled to a defense in one type of case, was not entitled to a defense in two other cases, and there were factual issues preventing summary judgment for either party as to other cases.[xi]

4. Risk mitigation steps.

Finally, there are several ways individuals and companies can mitigate their risk from PFAS contamination. This includes contractual provisions, such as express warranties, indemnification clauses, agreement to insure clauses, limitations of liability and damages, and subrogation waivers. The exact contractual language used depends on the type of business, from where its risk from PFAS derives, and the governing state law.

In addition, owners of PFOA and PFOS contaminated land can apply to participate in Indiana’s Voluntary Remediation Program (“VRP”). The VRP is based in statute and is intended “to encourage the voluntary remediation of hazardous substances and petroleum.” Ind. Code § 13-25-5-1. This statute expressly incorporates CERCLA’s definition of hazardous substance. Ind. Code § 13-11-2-98. The VRP provides defenses to environmental liabilities concerning matters in the work plan or the certificate of completion. Ind. Code §§ 13-25-5-18(g); 13-25-5-20(b).

Jackson Schroeder is an attorney at Bose McKinney & Evans who focuses his practice on environmental, administrative, and insurance litigation. He can be contacted at jschroeder@boselaw.com or 317-684-5159.  

This publication is intended for general information purposes only and does not constitute legal advice. You should consult your own lawyer regarding your specific circumstances.