In our August 25, 2026, blog, we discussed some of the significant consequences of the ruling (Chamber of Commerce of the United States of America et al. v. the United States Environmental Protection Agency) that upheld the CERCLA (Comprehensive Environmental Response, Compensation and Liability Act) designation of PFOA (perfluorooctanoic acid) and PFOS (perfluorooctane sulfonate) as hazardous substances. Since then, law firms and industry groups have provided analysis, insights, and opinions on this significant ruling.
Review Insurance Terms and Conditions
“The D.C. Circuit’s decision upholding EPA’s Superfund ‘hazardous substance’ designation for two PFAS is expected to drive an increase in cleanup and other claims for companies that used PFAS, say attorneys, who are urging companies to closely review insurance terms and environmental cost-allocations in contracts to determine liabilities.” Inside EPA (paywall)
Liability Protection: All Appropriate Inquiry
“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.” Hunton
The designation of PFOA and PFOS as CERCLA hazardous substances is one of the more consequential environmental decisions in recent memory.
Liability for Those who Received PFAS-Containing Materials
“The Chamber of Commerce opinion is particularly relevant to businesses that have not manufactured PFAS but may have received or handled PFAS-containing materials. The petitioners specifically raised concerns about downstream industries such as waste management, construction, and recycling. EPA responded, and the court noted, that CERCLA contains statutory defenses and limitations as well as mechanisms addressing parties responsible for comparatively small contributions.” Liskow
Five-Year Reviews
“This rule has the potential to significantly impact entities in various sectors. As an example, EPA could review PFOA and PFOS in five-year reviews for existing sites, could re-open closed sites where PFOA and/or PFOS may be present, and could identify new CERCLA sites or require removals based solely on PFOA and PFOS. The industries most likely to be impacted include those involved in aviation, paper mills, landfills, firefighting training facilities, metal plating facilities, and textile coating operations. The rule may also impact industries that manufacture or use polymers, photographic film material, pesticides, and some medical devices.” Stinson
From the Ruling: 3 Percent Rule of Thumb
Finally, in reviewing the court ruling, the justices addressed concerns about sites being added to the National Priorities List (NPL) due to PFOA and PFOS. The court states, “EPA reported that it has placed on the List ‘only about 3 percent of the 53,400 sites assessed since the program’s beginning in 1980.’ ”
However, this 3% rule of thumb that has applied historically may be put to the test for sites that potentially have PFAS impacts. Safe Drinking Water Act Maximum Contaminant Levels (and potentially the water cleanup standard) for PFOA and PFOS are 4 parts per trillion, which is substantially lower than those for other regulated environmental contaminants and very near the level at which these chemicals can be reliably detected.
Further, as we pointed out in our July 15, 2026, blog, “PFAS have been used for decades in not only industrial applications like firefighting foams and mist suppressants but also in many common consumer products ranging from fast-food wrappers, dental floss, cosmetics, non-stick cookware, stain-proof carpeting, and water-repellent clothing, to name just a few. There are estimated to be tens of thousands of products that contain PFAS across a wide range of businesses.” So, there could potentially be multiple sources of PFAS at one site.
The designation of PFOA and PFOS as CERCLA hazardous substances is one of the more consequential environmental decisions in recent memory. As outlined above, the breadth of this decision will significantly impact a variety of business decisions.
PFAS Technical Expertise
If you have questions or need assistance with a PFAS-related issue, we can help. We have hands-on experience in the assessment/remediation of PFAS, and we have provided litigation support on several projects involving PFAS. For more information, contact Jeffrey Bolin, M.S., CHMM, or Matthew Schroeder, M.S., P.E., at 248-932-0228, Ext. 125 and 117, respectively.
Alan Hahn drafted this blog. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for more than 45 years. He has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.
This blog was reviewed by Matthew Schroeder, M.S., P.E. Matt is a senior environmental engineer at Dragun Corporation. Matt has 30 years of experience with soil and groundwater remediation, vapor intrusion, and, more recently, with PFAS. Specific to PFAS, Matt has completed the ITRC PFAS Training; is a member of the Michigan PFAS Action Response Team, Treatment Technology Roundtable, and Michigan Manufacturers Association PFAS Work Group; and has participated in the PFAS Experts Symposium. Matt is a frequent speaker, author, and expert witness. See Matt’s bio.
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