On August 18, 2026, the U.S. Court of Appeals for the District of Colombia’s Circuit (D.C. Circuit) affirmed an earlier U.S. Environmental Protection Agency (U.S. EPA) rule to designate two forever chemicals as “hazardous substances.” This rule, initially promulgated in April 2024, designated two types of per- and polyfluoroalkyl substances (PFAS), specifically perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substances. This is a narrower action than a hazardous waste listing under the Resource Conservation and Recovery Act (RCRA) but still has consequences.
The immediate impact of the Court’s decision is that CERCLA continues to mandate that releases of 1 pound (lb) in any 24-hour period of either PFOA or PFOS, or their respective salts and structural isomers for a total of 98 PFAS compounds, must be reported to the National Response Center (NRC) within 24 hours. Reporting obligations exist for both episodic and continuous releases. Some facilities will know immediately that they must abide by the CERCLA provisions of reporting continuous releases, while for many it will be something they must investigate further, or accept the risk of operating without the certainty of their compliance status. Some of the long-term impacts of this hazardous substance designation are discussed below.
The ruling side-stepped the cost-benefit question of whether U.S. EPA is obliged to consider costs when making a ‘hazardous’ determination. Rather, it left the question unresolved and likely the topic of litigation for future designations, where the agency is likely to bear the burden. On the other hand, this ruling was a post-Chevron win for U.S. EPA, as the Court’s decision indicated the agency’s interpretation was aligned with how Congress wrote the provisions of CERCLA; specifically that PFOS and PFOA “may present substantial danger.”
While the CERCLA classification of these two substances is significant, the greatest impact will come from interpretations of the Court’s decision and the activation of regulatory machinery at U.S. EPA’s discretion.
Regulatory Machinery
Most CERCLA hazardous substances are deemed hazardous by reference to other regulatory programs, such as the Clean Water Act (CWA), Clean Air Act (CAA), RCRA, or Toxic Substances Control Act (TSCA). This action was the first instance of a direct designation under CERCLA Section 102(a), now with a judiciary stamp of approval, that clears a path for U.S. EPA to designate additional PFAS or other compounds as hazardous substances. In addition, there is a pending action under RCRA to designate nine PFAS as hazardous constituents, which would make those nine PFAS an expressly identified consideration in RCRA corrective action investigations and clean ups.
In addition to the automatic release reporting required, CERCLA Section 306 also requires the Department of Transportation to regulate hazardous substances as ‘hazardous materials’ under the Hazardous Materials Transportation Act (HMTA). Under Section 120(h) of CERCLA, federal entities selling or transferring properties must also disclose the storage, release, or disposal of the substances. Some other downstream regulatory impacts that will permeate the regulated community more broadly include:
- RCRA corrective actions at permitted hazardous waste Transfer, Storage, and Disposal Facilities (TSDFs)
- Wastewater and biosolids management
- Real estate due diligence All Appropriate Inquires (AAI)
- State Superfund statutes
Waste management companies and public utilities, without an exemption or similar liability carveout, will continue to operate with higher scrutiny of customers due to the increased liability of receiving PFAS or PFAS-containing wastes. Waste generators can anticipate an increase in the certifications, monitoring, and overall effort to demonstrate that their waste streams do not contain PFAS.
Incorporating these two compounds into the AAI process, which is typically the standard applied to any Phase I Environmental Site Assessment (ESA), will take significant time and effort to work its way through the real estate industry. Questions around whether PFAS are present given a property’s historical industrial activities, rather than any material evidence of the fact, are sure to complicate transactions sooner rather than later.
These and other impacts of the designations will take time to filter through the state and federal agencies, are highly likely to encounter litigation, but will ultimately result in additional due diligence, compliance, and remediation efforts to address PFOA and PFOS.
What can my facility do to prepare?
In the immediate wake of the designations, facilities should update applicable plans and procedures to reflect PFOA and PFOS reporting quantities under CERCLA and EPCRA. Understanding the risk and implications of reporting, or failing to do so, for each potentially affected facility is important and ALL4 can support navigating this for you. We can help you evaluate scenarios under which reporting might be required. For facilities that have not already done so, they should inventory historical and current PFAS use and disposal activities. If you are in the midst of, preparing for, or considering a real estate transaction, clear communication with the environmental professional performing the Phase I ESA is critical. ALL4 has environmental professionals who can perform Phase I ESAs, assist in the interpretation of these lengthy reports, or support navigating through findings of any such investigation. If you have additional questions or would like to discuss, please contact Kayla Nuschke at knuschke@all4inc.com or Cody Fridley at cfridley@all4inc.com.
