The Latest on PFAS, CERCLA, and Passive Receivers

On September 17, EPA issued a press release that included, among other things, an update on the liability issues regarding passive receivers. Since this issue impacts many of our clients, I’ve been getting calls and questions, asking for my perspectives. Now that several weeks have passed, I’ve had time to consider the matter and wanted to provide some encouragement for those clients that qualify as passive receivers of PFAS.

What is a Passive Receiver? 

In 2024, PFOA and PFOS were designated Hazardous Substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This gave the U.S. EPA the power to address existing contamination and hold responsible parties liable through the Superfund program.  

The term Passive Receiver is not defined under CERCLA but is generally understood to refer to entities that did not manufacture or generate the contaminants but received them in, for example, waste disposal or wastewater. Examples of Passive Receivers include: 

• Community water systems

• Publicly owned treatment works (POTWs) 

• Municipal separate storm sewer systems (MS4s) 

• Publicly owned/operated municipal solid waste landfills 

• Publicly owned airports and local fire departments 

• Farms where biosolids are applied to the land 

With so many entities qualifying as Passive Receivers of PFAS, the designation of PFOA and PFOS as Hazardous Substances received substantial pushback from multiple industries and trade associations. Spokespeople for these organizations testified to the negative impact on their operations if liability exceptions were not made. In response, EPA issued the PFAS Enforcement Discretion and Settlement Policy Under CERCLA.  While this provided some reassurance, many argued that a memo wouldn’t hold much weight should the agency be pressured to change its mind. 

EPA’s September 2025 Statement on Passive Receivers 

As mentioned, on September 17, 2025, EPA issued a press release highlighting Next Steps on Regulatory PFOA and PFOS Cleanup Efforts and an Update on Liability and Passive Receiver Issues. Most notably, this release stated that EPA has decided to uphold the current designation of PFOA and PFOS as Hazardous Substances, so the speculation that they would roll back this rule can be put to rest. 

However, the fact that the agency also felt the need to provide an update on the Passive Receiver issue is a clear indication that the memo had not ended that matter. In fact, the memo began with a quote from the EPA administrator: 

“When it comes to PFOA and PFOS contamination, holding polluters accountable while providing certainty for passive receivers that did not manufacture or generate those chemicals continues to be an ongoing challenge. I have heard loud and clear from the American people, from Congress, and from local municipalities about this particular issue. EPA intends to do what we can based on our existing authority, but we will need new statutory language from Congress to fully address our concerns with passive receiver liability. The Trump Administration is fully committed to ensuring all Americans have the cleanest air, land, and water.”  

Lee Zeldin, U.S. EPA Administrator 

Later, the memo adds “the best, most enduring solution to this issue is a statutory fix to protect passive receivers from liability, which EPA would follow to the letter of the law.” 

What This Might Mean for Passive Receivers 

At first glance, it may seem like EPA is kicking the can down the road. After all, they are clearly placing the issue on Congress’ shoulders—a novel approach for an agency that has been granted the power to issue rules that have the force of law. So, what gives? 

Does anyone remember Chevron Deference? This legal principle compelled federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that the agency administers. I am not a lawyer, but as I see it, the issue of Passive Receiver enforcement discretion would fall into this category. Since Passive Receivers are not explicitly defined under CERCLA, Chevron Deference arguably gives EPA the power to use their enforcement discretion. 

However, on June 28, 2024, the U.S. Supreme Court ended Chevron Deference, ruling that federal courts should no longer defer to agency interpretations of ambiguous laws, but interpret the laws themselves. That means that a passive receiver arguing their case in court needs to convince one of the more than 1700 federal judges currently employed in the federal judicial system. While I am sure many of them are fair and impartial, it’s still a roll of the dice. 

There are a couple of ways EPA could resolve this issue and give these entities some peace of mind. First, the agency could write Passive Receiver enforcement discretion into the rule. They may still do that if they get enough feedback, but as we all know, the EPA rulemaking process can take years. The inevitable lawsuits over contentious issues like this delay the process even further. Ironically, Congress may be able to codify a definition of Passive Receiver into law faster than the EPA. Given the cross-section of entities this law would impact, it could also get significant bipartisan support. 

One Final Upside 

Before I close, I wanted to comment on one more element in the press release that could have substantial implications for our clients.  That is the intention to initiate “future rulemaking to establish a uniform framework governing designation of hazardous substances under section 102(a) of CERCLA.”  

As some of you might recall, in addition to designating PFOA and PFOS as Hazardous Substances, EPA had also issued an ANPRM (Advance Notice of Proposed Rulemaking) in 2023, which would add seven additional PFAS and their precursors to the CERCLA list of Hazardous Substances: PFBS, PFHxS, PFNA, HFPO-DA, PFBA, PFHxA, and PFDA. The NPRM was never issued, but the agency could still move forward on this rule.  

With the press release, I think the agency is saying that they are open to adding additional PFAS, but they want to do this in a structured way that is arguably less time-consuming and problematic for all concerned. We will have to wait and see what the proposed framework looks like, but I don’t think we should expect these additional PFAS designations anytime soon. That should give some of our clients the breathing room they need to assess their potential liabilities and perhaps engage our PFAS Treatability Center of Excellence to help them address any issues.  

What’s Your Perspective? 

To be clear, our role at Pace® isn’t to argue for or against laws or EPA rulemaking. We’re here to help you comply with whatever comes your way. Nevertheless, the statements made by EPA in this release impact so many of our clients and it is such a hot topic in our industry that I thought it worth providing a few perspectives. Agree or disagree, feel free to send me a comment.