US Seeks Pause in PFAS Superfund Case as EPA Weighs Rule (2)

The Department of Justice is asking a federal court to pause litigation seeking to recover costs for cleaning up two specific PFAS, indicating the EPA may decide that the chemicals are no longer hazardous Superfund substances.

The motion submitted Monday to the US District Court for the District of South Carolina sends the strongest signal to date that the Trump administration may seek to withdraw last year’s regulation that made perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or Superfund law.

No decision has been made, DOJ told the court that’s overseeing multidistrict litigation over aqueous film forming foam (AFFF), a fire suppressant made with per- and polyfluoroalkyl substances (PFAS) such as PFOA and PFOS.

But, spending time on CERCLA claims could be a “futile” use of the court’s time and efforts, wrote Sanya Shahrasbi, a Department of Justice attorney representing the federal government.

“The litigation of the CERCLA cost recovery or contribution claims should not proceed while there is uncertainty as to such a material element of those claims,” Shahrasbi wrote.

Focusing on the possibility that the EPA may seek to withdraw the 2024 rule could be a tactic to delay resolution of the CERCLA claims, Michael London of Douglas & London P.C., co-lead counsel for plaintiffs, told Judge Richard M. Gergel during a June status conference in the AFFF case.

But the DOJ said in Monday’s motion that an abeyance also would give the government time to ensure that plaintiffs aren’t paid twice for the same tasks, Shahrasbi wrote.

Cost Recovery, Discovery

CERCLA allows third parties to seek to recover costs they spend addressing hazardous substances provided the money is spent on tasks that meet criteria set by the National Contingency Plan (NCP). That plan lays out the types of actions that responsible parties must take to properly investigate and ultimately clean up contaminated Superfund sites. The statute, however, prohibits double recovery.

Two plaintiffs—the state of New Mexico and dairy farmers Art and Renee Schaap—have filed summary judgment motions asking the court to direct the US government to pay them recovery money they say qualifies for reimbursement. Additional CERCLA cost-recovery claims are expected.

In a separate motion also filed on Monday, the DOJ asked the district court to deny or defer ruling on the Schaaps’ request to recover an initial $80,000 spent testing soil, crops, water, and other materials to determine the extent of PFOA and PFOS contamination on their property, which abuts Cannon Air Force Base in New Mexico.

The Schaaps’ also asked the court to find the government liable for CERCLA-response costs they may seek in the future that meet the NCP’s criteria.

“The United States has not yet had a chance to conduct any discovery in this case,” wrote DOJ attorney Shari Howard, in the motion focused on the Schaaps’ claim. “Discovery is needed to obtain facts required to inform a proper response to plaintiffs’ motion for partial summary judgment.”

For example, the Schaaps assert the US is liable for 100% of their past CERCLA response costs and all future costs, Howard wrote. Yet plaintiffs’ released PFOA and PFOS through their actions including dumping milk and burying cow carcasses, DOJ’s motion said.

The Schaaps dumped the milk because it was contaminated with PFOA and PFOS and couldn’t be sold. They worked with the US Department of Agriculture in an ultimately unsuccessful attempt to see whether the chemicals could be removed from the dairy herd. With the US government’s permission, the Schaaps eventually killed their cows and buried them on their property, according to information the dairy farm has previously provided the South Carolina and other courts.

The government needs time to investigate whether funds the Schaaps received from the USDA and the New Mexico Environment Department, for example, would duplicate payments the farm now seeks to recover under CERCLA, DOJ’s motion said.

The government did not, however, ask the court to grant discovery, because it wants all cost-recovery claims to be paused until the EPA decides whether it wants to withdraw the rule that make PFOA and PFOS hazardous substances.

The EPA is scheduled to tell the US Court of Appeals for the District of Columbia Circuit by Sept. 17 how it would like to proceed in a separate lawsuit, Chamber of Commerce v. EPA, that challenges the 2024 hazardous substances rule. The agency has repeatedly sought abeyances in that lawsuit to give the agency’s new leadership time to familiarize themselves with the Biden-era regulation.

The case is In Re Aqueous Film-Forming Foams Products Liability Litigation MDL 2873, D.S.C., No. 18-02873, US Government’s Motion Filed, 9/8/25.