The Nickel Report

On August 18, 2026, the D.C. Circuit upheld EPA’s designation of PFOA and PFOS as hazardous substances under CERCLA. See Chamber of Commerce v. EPA, No. 24-1051 (D.C. Cir., Aug. 18, 2026). The court rejected industry challenges to EPA’s analysis of contamination, cleanup costs, and broader economic impacts. It held that EPA reasonably explained its decision in the face of uncertainty because CERCLA response actions are discretionary, contingent, and site-specific, with multiple procedural safeguards before liability attaches. Further discretionary review is available, but, unless and until review is sought, and the panel’s decision reversed or vacated, the designation remains in force. EPA acknowledges that the rule’s reach and compliance costs remain difficult to predict, and the procedural safeguards against liability mentioned by the court are neither self-implementing nor guaranteed to be available to everyone potentially impacted by the final rule. Businesses and property owners should carefully assess how the designation may affect their environmental obligations and transactions and take proactive steps to evaluate and manage their potential liabilities related to PFOA and PFOS.

Key Implications for Business and Property Owners

EPA has pledged to exercise discretion and avoid using its enforcement tools to require certain industries or entities to investigate or remediate PFOA and PFOS contamination. CERCLA also provides limited defenses for releases caused by third parties and protections for qualifying landowners and tenants, although these defenses and protections have stringent requirements that are narrowly construed and require careful compliance to invoke. The ruling, however, may prompt states, neighboring property owners, and other private parties to pursue claims against entities that own contaminated property or may have released PFOA or PFOS onto other properties or into the environment (even if they originated elsewhere and merely passed through their properties and operations as waste or runoff). For example, EPA’s promises not to pursue municipal landfills, wastewater treatment plants, or airports have not prevented states and private parties from pursuing CERCLA claims against those same entities for PFOA/PFOS contamination, and the court’s ruling is likely to accelerate that trend.

Beyond direct litigation risk, the ruling may also trigger unanticipated indirect consequences. Concerns about future liability could lead landfills to reject wastes likely to contain PFOA or PFOS, which could drive up disposal costs for numerous industries. These are precisely the kinds of unanticipated, indirect impacts that could result from the court’s ruling, which businesses should do their best to prepare for.

Property Transactions and Due Diligence

Companies considering property acquisitions should account for the possibility of PFOA/PFOS contamination. Given the chemicals’ persistence and uncertainty about where contamination may be found, companies should consult environmental counsel about evaluating contaminated properties and wastes. Cleanup costs may bear little relationship to a property’s value and potentially could substantially exceed it, making undiscovered contamination difficult to assess or anticipate financially.

Prospective purchasers and tenants should take steps to qualify for statutory liability protections by completing All Appropriate Inquiries—including a Phase I Environmental Site Assessment conducted by a qualified environmental professional and compliant with the appropriate industry standard (e.g., ASTM E1527-21)—before acquiring or leasing property. They should document those efforts and conduct the inquiries even when the protections may not apply because the results can help inform whether to proceed with the transaction.

Regulatory Developments to Watch

EPA and states may increase scrutiny of PFOA/PFOS contamination on multiple fronts. At sites already undergoing investigation or remediation, regulators may add PFOA/PFOS testing to monitoring programs. Closed sites with completed remedies could also be reopened. Additionally, although EPA has proposed delaying the PFAS reporting rule under the Toxic Substances Control Act, the results from future reports may provide regulators and private plaintiffs with new leads to identify potentially responsible parties, based on probable pathways for PFOA/PFOS to transfer from products to the environment. States are also expected to expand monitoring PFOA/PFOS discharges in wastewater and stormwater for similar purposes. These efforts could accelerate further if EPA formally approves Method 1633A for analyzing PFAS in surface water, groundwater, wastewater, soil, and other media, a step that could occur in the near term and would likely prompt broader testing and higher compliance costs.

Although the full impact of the D.C. Circuit’s ruling remains uncertain, businesses and property owners should prepare for PFOA/PFOS-related compliance, reporting, permitting, and remediation issues. EPA’s Superfund Solutions Initiative, announced in June, has accelerated many aspects of CERCLA investigation and remediation processes at Superfund sites nationwide, but it is too soon to tell how quickly PFOA/PFOS will become a focus of the agency. Our environmental team can assist with assessing potential exposure, navigating regulatory requirements, structuring transactions to preserve available defenses, and developing strategies to manage risks related to PFOA, PFOS, and other CERCLA “hazardous substances.” Our Regulated Industries and Government Relations Team has direct experience working on legislation to clarify the reach of federal environmental obligations and potential liabilities for PFAS.