Contaminants Compass is a monthly newsletter that provides updates, legal observations and actionable tips to navigate the evolving legal challenges of per- and polyfluoroalkyl substances (PFAS) and similar chemicals and products.
This edition highlights stakeholder pushback on the EPA’s Draft Biosolids Risk Assessment and continued briefing in the U.S. Court of Appeals for the D.C. Circuit over the EPA’s designation of the chemicals perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), two PFAS compounds, as hazardous substances under CERCLA. It also reviews recent appellate activity in the First and Second Circuits examining state efforts to separate aqueous film‑forming foam (AFFF) and non-AFFF PFAS claims, a New Jersey county’s challenge to the state’s $400 million settlement with 3M, and New Mexico’s proposal of the nation’s first comprehensive PFAS product labeling requirement.
Look for new editions every month, and feel free to reach out to the McGuireWoods team with questions regarding PFAS issues.
I. Federal Regulatory
EPA Receives Broad Stakeholder Pushback on Draft Biosolids Risk Assessment for PFOA and PFOS
The EPA’s January 2025 Draft Sewage Sludge Risk Assessment evaluating potential risks from land-applied biosolids containing PFOA and PFOS has generated more than 25,000 stakeholder comments. As discussed in the October 2025 edition of Contaminants Compass, this assessment represents the EPA’s first step toward determining whether to regulate PFAS under the Clean Water Act’s longstanding Part 503 biosolids framework.
Commenters, including trade associations, wastewater agencies, land-application contractors and private sector entities, challenged the EPA’s conclusion that biosolids containing as little as 1 ppb of PFOA or PFOS may exceed conservative long-term exposure criteria. Many argued that the benchmark is “exceptionally low” and below typical background concentrations in soil, blood serum and household products. Technical submissions also highlighted peer-reviewed studies suggesting that the EPA’s modeling assumptions may overstate potential risks associated with a recycling practice used nationwide for more than 50 years.
The EPA will consider the comments and issue a final risk assessment, which will inform future regulatory action. Meanwhile, states continue to implement their own PFAS-specific biosolids management strategies, including Michigan’s widely referenced tiered framework that imposes varying land-application restrictions based on PFAS concentrations.
Briefing Advances in D.C. Circuit Challenge to EPA’s CERCLA Hazardous Substance Designation
As reported in the September 2025 edition of Contaminants Compass, the U.S. Chamber of Commerce and two trade associations are challenging the EPA’s designation of PFOA and PFOS as hazardous substances under CERCLA § 102(a). On Nov. 14, 2025, petitioners filed their joint reply brief, again urging the D.C. Circuit to vacate the rule.
The petitioners argue that the EPA adopted an overly expansive reading of the phrase “may present substantial danger,” introduced a new cost analysis in the final rule without adequate notice and proceeded despite acknowledged scientific uncertainty. They assert that these issues render the rule arbitrary, capricious and procedurally defective. The petitioners also point to the EPA’s September 2025 announcement of a forthcoming “framework rule” for future CERCLA designations as evidence that guardrails and cost considerations are lacking.
The EPA counters that substantial toxicity, persistence and mobility evidence supports its precautionary determination and that any procedural error should result in remand without vacatur given the public health implications. Oral arguments are set for Jan. 20, 2026.
II. State Regulatory
New Mexico Proposes Nation’s First Comprehensive PFAS Product Labeling Requirement
The New Mexico Environment Department (NMED) proposed the nation’s first broadly applicable labeling requirements for all products, including consumer products, containing intentionally added PFAS. The proposal, released under New Mexico’s recently enacted PFAS Protection Act, HB 212, forms part of a new rulemaking that will undergo formal public notice and an evidentiary hearing expected early next year.
During an Oct. 22 public webinar, NMED outlined the proposed rule’s labeling framework, previewing potential, but not final, warning symbols and packaging statements. These included a PFAS-branded hazard icon and bilingual cautionary language linking PFAS to environmental and health impacts. NMED stated that mandatory labeling would allow consumers to make more informed decisions about bringing PFAS-containing products into their homes or businesses. Stakeholders, however, questioned whether broad warning language without scientific context may be unnecessarily alarmist.
The PFAS Protection Act phases in prohibitions on the sale of products containing intentionally-added PFAS beginning in 2027, with additional categories restricted by 2028 and a near-complete prohibition by 2032 absent a currently unavoidable use (CUU) determination or specific exemption. Although the statute itself does not require labeling, it authorizes the Environmental Improvement Board (EIB) to adopt such requirements. Under the proposed rule, labeling would be required for all PFAS-containing products by Jan. 1, 2027, including those exempted from sales prohibitions or covered by a CUU determination.
Notably, New Mexico’s statute distinguishes between fluoropolymers, such as PTFE, and nonpolymeric PFAS. Fluoropolymers are exempt from reporting and prohibition requirements, but not automatically from labeling. This distinction is significant given the broad scientific consensus that fluoropolymers are nontoxic and environmentally stable. Industry commenters argue that labeling all PFAS uniformly, regardless of chemical class or risk profile, may mislead consumers and undermine the statute’s scientific grounding.
Written comments submitted to the EIB preview several issues likely to dominate next year’s hearing, including whether labeling will be required even for products otherwise exempt under the statute; whether the labeling requirement could constitute compelled speech under the First Amendment; whether federal labeling regimes for pesticides, pharmaceuticals and medical devices preempt state requirements; and whether a January 2027 implementation deadline would impose undue burdens on manufacturers given the short timeframe after potential rule adoption.
Although New Mexico represents a relatively small market, the proposal is significant. A labeling mandate of this breadth could affect manufacturers seeking to distribute nationally and may prompt other states to consider similar requirements. Manufacturers and importers should monitor the rulemaking closely as the EIB moves toward a final determination in 2026.
III. Litigation/Legislative Alerts
Federal Appeals Courts Scrutinize State Attempts to Split PFAS Claims to Avoid Federal Jurisdiction
Appellate courts increasingly have signaled skepticism of efforts to keep PFAS contamination cases in state court by separating federally directed AFFF claims from consumer product claims. Maine and Connecticut filed dual lawsuits against 3M, one targeting AFFF and one targeting non-AFFF consumer products, accompanied by express disclaimers renouncing claims linked to federally authorized AFFF. Courts are questioning whether such limitations meaningfully prevent litigation over federally protected conduct when PFAS contamination includes commingled sources that cannot be readily distinguished.
On Nov. 19, 2025, the U.S. Court of Appeals for the First Circuit ruled in an opinion that Maine’s non-AFFF consumer-product case must be litigated in federal court despite the state’s express disclaimer. The court concluded that Maine’s approach constituted “artful pleading” because determining liability will still require fact-finding regarding whether contamination stems in part from federally directed AFFF. That inquiry allows 3M to assert a federal contractor defense, triggering jurisdiction under the federal officer removal statute. One day later, a Second Circuit panel raised similar concerns during oral argument in Connecticut’s parallel litigation strategy. Judges questioned whether a jury could realistically disregard AFFF-related harm, given that PFAS contamination may be scientifically intertwined across product sources, and whether the disclaimer can practically deprive 3M of its statutory right to invoke a federal defense.
These cases suggest that courts are signaling that PFAS claims involving mixed contamination sources cannot be separated into distinct state and federal enforcement tracks simply by “carving out” AFFF allegations, including efforts to disclaim only federally directed AFFF uses that trigger a federal contractor defense, through pleading disclaimers. As more states pursue consumer product PFAS enforcement actions alongside AFFF-related claims, they may increasingly be required to litigate both categories in federal court when defendants assert federal contractor defenses tied to federally directed manufacturing. This trend may lead to strategic limitations for state enforcement actions, longer litigation timelines and a greater likelihood that PFAS suits involving overlapping contamination will be removed to federal forums.
D.C. District Court Dismisses Suit Seeking to Compel EPA PFAS Regulation in Biosolids, Appeal Filed
On Sept. 29, 2025, the U.S. District Court for the District of Columbia dismissed an action seeking to compel the EPA to identify and regulate PFAS in biosolids as part of its biennial review obligations under the Clean Water Act. The court held that while the EPA must review its biosolids regulations every two years, the statute does not require that it identify or regulate additional pollutants within the same timeframe, nor does the biennial report constitute final agency action reviewable under the APA.
The plaintiffs filed an appeal to the D.C. Circuit on Nov. 25, 2025.
New Jersey County Seeks Exclusion From State’s $400M PFAS Settlement With 3M
Monmouth County, New Jersey, moved to intervene in the state’s pending $400 million PFAS settlement with 3M, asking the federal district court to exclude the county from the judicial consent orders that would finalize the agreement. The county argues that participating in the settlement would bar it from bringing its own PFAS-related claims and would inadequately compensate for local remediation costs.
In its motion, the county asserts that PFAS contamination has caused “significant damage” within its jurisdiction and that future regulatory requirements, such as the need to treat wastewater for PFAS before reinjection into aquifers, could impose substantial costs on municipal utilities. The county contends that the settlement’s release of statewide PFAS claims would prevent municipal wastewater entities from seeking compensation to upgrade facilities, thereby shifting the financial burden onto local taxpayers and ratepayers. Monmouth County also states that the New Jersey attorney general did not consult with municipalities during settlement negotiations and provided no mechanism for political subdivisions to opt out of the deal.
New Jersey originally sued 3M and other companies in 2019, alleging decades of unlawful discharges of PFAS and other hazardous substances, including at the Chamber Works facility in Salem County. DuPont and associated entities separately settled for $2.5 billion. Under the state’s agreement with 3M, the company would be released from claims arising from the design, manufacture, distribution and disposal of PFAS, as well as their presence in the environment and alleged misrepresentations about PFAS-containing products.
The court will now determine whether Monmouth County may intervene to protect its interests. The county’s challenge highlights potential fault lines between state-negotiated settlements and the remediation and cost-recovery objectives of local governments facing long-term PFAS burdens.
As federal and state regulators, courts, and stakeholders continue to shape the PFAS landscape, regulated entities should expect continued uncertainty around timing, scope and implementation of new requirements. Developing a proactive strategy for monitoring rulemakings, reassessing legacy practices such as biosolids land application, and evaluating potential cost-recovery or enforcement exposure remains critical. McGuireWoods continues to track these developments and provide updates.