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On August 18, 2026, the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion upholding the EPA’s designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The court denied the consolidated petitions filed by seven industry groups challenging the rule in Chamber of Commerce of the United States v. EPA. 

Businesses that manufacture, use, transport, manage, discharge, or encounter PFOA or PFOS should review their operations, property interests, contracts, and response procedures. The designation leaves in place release reporting obligations when applicable reportable quantities are met, as well as transportation obligations. It also allows PFOA and PFOS contamination to serve as the basis for CERCLA cleanup orders and cost-recovery claims after applicable site-specific regulatory and factual predicates are satisfied. With the principal appellate challenge now rejected, companies should expect EPA, states, private plaintiffs, and transactional counterparties to continue treating PFOA and PFOS as established CERCLA hazardous substances.

Background

In May 2024, EPA designated PFOA and PFOS as hazardous substances under CERCLA. EPA relied on studies concerning potential human-health effects and the chemicals’ persistence and movement in the environment. EPA concluded that the available evidence concerning hazard, environmental fate, and transport supported the designation. Seven industry groups petitioned for review arguing that EPA had misinterpreted CERCLA’s “may present substantial danger” standard, failed to provide adequate notice of its cost-benefit analysis, conducted an arbitrary and capricious economic analysis, and acted unreasonably despite uncertainty concerning the locations, costs, and consequences of PFOA and PFOS contamination. The court rejected each challenge. Notably, applying Loper Bright, the court independently interpreted CERCLA's "may present substantial danger" standard and concluded that EPA was not required to demonstrate certainty that harm would result from a release.

The Court’s Key Findings

  1. CERCLA does not require certainty that a release will cause substantial harm. The statutory phrase “may present substantial danger” refers to a possible substantial danger, not a danger that is certain to occur. However, the word “substantial” continues to impose a meaningful limit requiring a serious and real risk rather than a merely hypothetical one. 
  2. A substance may qualify as both a pollutant or contaminant and a hazardous substance. The court rejected the argument that CERCLA establishes a rigid hierarchy under which a substance already treated as a pollutant or contaminant cannot later be designated as hazardous. It concluded that the statute creates different cleanup pathways rather than mutually exclusive categories. 
  3. There was adequate notice. PFOA and PFOS had already been treated as CERCLA pollutants or contaminants, and the designation followed notice-and-comment rulemaking. Also, subsequent updates to the analysis did not require re-noticing.
  4. The designation does not impose cleanup liability automatically. CERCLA response actions remain discretionary, contingent, and site-specific. Whether a governmental response action or private cost-recovery claim proceeds will continue to depend on site-specific facts and the applicable CERCLA process. 

Recommended Actions

Organizations that may encounter PFOA or PFOS should consider the following measures:

  1. Identify potential sources. Review current and historical operations for materials, products, waste streams, wastewater, sludge, leachate, firefighting foams, coatings, treated textiles, and other processes that may have involved PFOA or PFOS. Determine whether PFOA- or PFOS-containing materials or wastes are shipped in quantities that trigger hazardous-material identification, marking, documentation, packaging, or carrier requirements.
  2. Update written policies and maintain company records. Establish a process for promptly determining the identity and quantity of a release. Maintain purchasing records, product specifications, safety data sheets, waste manifests, sampling results, disposal records, transporter information, and communications with treatment or disposal facilities. Organizations should generally begin with a risk-based review of existing records and operational history before undertaking new PFAS investigations or sampling programs. Parties seeking CERCLA landowner protections should evaluate whether the environmental review adequately addresses PFOA and PFOS as appropriate based on the property's history and risk profile.
  3. Mitigate your risk through your contracts. Review indemnification, environmental liability, insurance, cooperation, audit, notice, and record-retention provisions in agreements to determine whether PFAS-related liabilities have been appropriately allocated. Contractual allocation does not eliminate CERCLA exposure to the government, but it may affect rights among private parties. EPA's current PFAS enforcement-discretion policies may affect agency enforcement priorities, but they do not eliminate statutory liability or prevent private-party claims. Parties seeking CERCLA landowner protections should document their due diligence investigation and continuing obligations measures supporting those protections. In addition, examine and consider updating insurance policies for pollution exclusions, claims-made provisions, occurrence-based coverage, allocation issues, and notice deadlines. 

Conclusion

The decision confirms that PFOA and PFOS will remain designated as hazardous substances under the CERCLA unless modified by future legislative, regulatory or judicial actions. The decision leaves in place a regulatory framework that can impose reporting obligations immediately and support future site-specific cleanup and cost-recovery actions. However, businesses can reduce their risk by identifying potential PFAS sources, improving documentation, reviewing property and contractual protections, and preparing for agency inquiries before a release or claim arises. The ruling also reinforces the importance of evaluating PFAS risks in transactions, real estate diligence, waste management arrangements, and legacy-site liability assessments.

If you have any questions about the issues raised in this alert, please contact the authors or the Womble Bond Dickinson attorneys with whom you normally work.