On August 18, 2026, the U.S. Court of Appeals for the D.C. Circuit unanimously upheld EPA’s designation of PFOA and PFOS as hazardous substances under CERCLA.
The ruling leaves the federal framework in place for cleanup orders, cost recovery, contribution claims, and release reporting. It also increases the importance of PFAS screening in New York and New Jersey real estate transactions.
For owners, developers, lenders, and industrial tenants, the issue is straightforward: PFAS risk can no longer sit in a general “emerging contaminant” discussion. PFOA and PFOS now belong in the core environmental liability analysis.
“No response actions are required as a result of designation or when there is a release or a report of a release of a hazardous substance,” EPA states. “Designation does not automatically require any investigation or cleanup actions.”
EPA Questions and Answers on the PFOA and PFOS CERCLA Designation
That limitation matters. The designation does not automatically make every contaminated property a Superfund site. It does, however, give EPA and private parties stronger tools when a release presents a site-specific risk.
What the D.C. Circuit upheld
The case, Chamber of Commerce of the United States of America v. EPA, challenged EPA’s 2024 rule adding PFOA and PFOS, including their salts and structural isomers, to the CERCLA hazardous substance list.
The unanimous court rejected industry arguments that EPA:
- Exceeded its authority under CERCLA Section 102(a)
- Applied the “may present substantial danger” standard too broadly
- Failed to adequately analyze cleanup costs and economic impacts
- Acted without enough scientific certainty
The court accepted EPA’s risk-based approach. CERCLA does not require EPA to prove that every release will cause harm. The statutory standard allows action where credible science shows a possible substantial danger to public health or the environment.
The ruling also confirms that EPA can use CERCLA in the face of scientific and economic uncertainty when its decision is reasonably supported by the record.
Legal analyses from Alston & Bird, Gravel2Gavel, Mondaq, and the Institute of Hazardous Materials Management describe the decision as a major development for PFAS liability and environmental due diligence.
What the designation changes for property and business risk
The term PFOA PFOS CERCLA hazardous substance now has direct transactional and operational consequences.
1. EPA can pursue cleanup and cost recovery
PFOA and PFOS contamination can now support use of CERCLA’s established enforcement and cost-shifting mechanisms, including:
- Section 106 orders compelling responsible parties to address contamination
- Section 107 cost-recovery claims
- Section 113 contribution claims among potentially responsible parties
- Site-specific removal or remedial actions
- Broader investigation of historic releases and disposal practices
CERCLA liability does not attach simply because a laboratory detects PFAS. EPA must still evaluate the release, threatened release, site conditions, and applicable liability elements.
The exposure is nevertheless broader than it was before the designation. Current and former owners, operators, generators, transporters, and industrial users may face claims depending on their connection to the facility and the contamination.
2. Release reporting requirements apply
The rule establishes a one-pound reportable quantity for PFOA and PFOS in a 24-hour period.
A release at or above that threshold must be reported to the National Response Center and, where applicable, state, Tribal, and local emergency response authorities. Failure to report can create a separate compliance problem apart from cleanup liability.
Facilities should review:
- AFFF and fire-training activities
- Manufacturing and industrial process chemicals
- Waste streams and disposal records
- Wastewater treatment operations
- Bulk storage and transfer areas
- Historic spills, fire events, and releases
- Transportation and shipping procedures
Do not assume that a legacy release is irrelevant because it occurred before 2024. The current designation changes how that historic condition may be evaluated in a transaction or enforcement matter.
3. Private-party claims become more significant
CERCLA is not limited to EPA enforcement. Other potentially responsible parties may pursue contribution or cost-recovery claims.
That matters in New York and New Jersey, where former industrial properties, waterfront parcels, fire-training areas, landfills, and manufacturing sites are frequently transferred, redeveloped, or divided among multiple owners.
A buyer that acquires a PFAS-impacted site may inherit more than a cleanup obligation. It may also inherit disputes over responsibility, contractual indemnities, insurance coverage, disposal history, and the allocation of future response costs.
Enforcement discretion reduces some risk, but it is not immunity
EPA has published a PFAS Enforcement Discretion and Settlement Policy under CERCLA.
The policy focuses federal enforcement on entities that significantly contributed to PFAS releases, including:
- PFAS manufacturers
- Companies that used PFAS in manufacturing
- Federal facilities
- Industrial parties that materially contributed to contamination
EPA also states that it generally does not intend to pursue response actions or costs against passive receivers where equitable factors do not support enforcement. The policy identifies municipal water systems, publicly owned treatment works, municipal landfills, municipal airports, local fire departments, and certain farms as examples.
That is useful guidance for public agencies and utilities. It is not a statutory exemption.
A policy can change. It also does not necessarily prevent:
- Private contribution claims
- State enforcement
- Contractual indemnity disputes
- Insurance coverage disputes
- Claims based on direct releases or significant contribution
Municipal water systems may have lower federal enforcement risk under the current policy, but owners and industrial operators should not assume the same protection applies to them.
Drinking water standards are separate from CERCLA liability
The federal drinking water rule and CERCLA address different problems.
EPA’s April 2024 National Primary Drinking Water Regulation established enforceable MCLs of 4.0 parts per trillion for PFOA and 4.0 ppt for PFOS.
On May 18, 2026, EPA proposed an optional two-year compliance extension for eligible public water systems. If granted, the extension would move the compliance date to April 2031.
The proposal does not change the 4.0 ppt MCLs. It also does not eliminate monitoring or reporting requirements during the extension period. Systems granted an extension must continue monitoring and reporting under the 2024 rule.
New York continues to enforce state MCLs of 10 ppt for PFOA and 10 ppt for PFOS during the transition. New York’s source-water guidance can be more stringent in certain contexts, including guidance values of 6.7 ppt for PFOA and 2.7 ppt for PFOS.
New Jersey has its own final PFAS remediation standards. NJDEP’s 2026 standards include the following values:
| Compound | Residential soil | Non-residential soil | Soil leachate | Groundwater |
|---|---|---|---|---|
| PFOA | 0.13 mg/kg | 1.8 mg/kg | 0.28 µg/L | 0.014 µg/L |
| PFOS | 0.11 mg/kg | 1.6 mg/kg | 0.26 µg/L | 0.013 µg/L |
The applicable standard depends on the medium, exposure pathway, site conditions, and NJDEP program requirements. Review the current NJDEP PFAS program and Ground Water Quality Standards before making a cleanup decision.
The practical point is simple: a drinking water standard does not answer every property liability question. A CERCLA assessment, state remediation standard, and transaction due diligence review may each apply different criteria.
What buyers, lenders, and developers should do now
PFAS liability NY NJ analysis should begin before a purchase agreement is signed, not after contamination appears during construction.
A defensible work plan should include:
- Review the property history.
Look for industrial operations, metal plating, textile production, chemical use, airports, fire-training areas, landfills, wastewater operations, and facilities with AFFF storage or use. - Screen regulatory records and adjacent properties.
PFAS can migrate through groundwater and may originate off site. A clean parcel history does not eliminate an upgradient source. - Include PFAS in Phase I decision-making.
An ASTM E1527-21 Phase I ESA should identify relevant current and historic uses, regulatory listings, data gaps, and conditions that warrant additional investigation. PFAS records-based screening should be explicit where the property history supports it. - Use Phase II sampling when the facts justify it.
Targeted soil and groundwater sampling can define whether PFAS is present, where it is located, and whether it affects the planned use or regulatory pathway. - Tie the investigation to the transaction.
Address findings in purchase agreements, representations, warranties, indemnities, escrows, insurance, lender conditions, and development budgets. - Build a response plan.
If contamination is confirmed, move quickly from data to action. Delineation, remedial design, treatment, soil management, agency coordination, and construction oversight should operate from one schedule.
Why local technical judgment matters in New York and New Jersey
A national consultant may deliver a technically correct report that still leaves your project waiting for the next answer.
NYC, Hudson County, Newark, Jersey City, the Hudson Valley, and waterfront New Jersey each bring different agency histories, fill conditions, groundwater pathways, and redevelopment constraints.
At Envicon, environmental due diligence connects directly to Phase II investigation and remediation. Our Environmental Assessment and Investigation practice includes Phase I ESAs, Phase II investigations, PFAS assessment, groundwater monitoring, and regulatory coordination.
Our Brownfield Remediation service carries the work from delineation through remedial design, field oversight, confirmation sampling, and agency closure.
That integrated approach matters because the report is not the finish line. The objective is a cleared path to closing, permitting, financing, and construction.
The takeaway for NY and NJ site owners
The August 18 ruling does not mean every property with PFAS becomes a Superfund site. It does mean PFOA and PFOS now sit firmly inside the CERCLA framework.
For owners, developers, lenders, and industrial tenants, the right response is not panic. It is disciplined diligence.
- Confirm the site history.
- Identify potential sources and migration pathways.
- Review federal and state standards separately.
- Test when the facts support testing.
- Allocate risk before closing.
- Plan remediation around the actual regulatory endpoint.
“Polluter Pays” remains the central CERCLA principle, but determining who pays requires good records, defensible sampling, and clear technical judgment.
For projects in Jersey City and Hudson County, Envicon’s local environmental consulting team works directly with developers, lenders, attorneys, contractors, and regulators. Collaboration is not a buzzword. It is how complex sites move forward.
Get a clear PFAS risk plan
If PFOA or PFOS may affect your property, transaction, or construction schedule, start with the facts.
This article is for general information and does not replace project-specific legal, regulatory, or engineering advice.
