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 the EPA’s decision to defend the designation of two PFAS (PFOA and PFOS) as CERCLA hazardous substances, a proposed rule revising PFAS reporting requirements under the Toxic Substances Control Act, new EPA guidance on best practices for PFAS sampling required by the Safe Drinking Water Act, the Government Accountability Office review of the EPA’s economic analysis of PFAS drinking water standards, potential executive actions related to PFAS and other chemicals recommended by the Make America Healthy Again (MAHA) Commission, updates to states’ regulation of PFAS and beneficial uses of treated waste, and PFAS litigation.
Look for new editions every month and feel free to contact the McGuireWoods team with questions regarding PFAS and related issues.
I. Federal Regulatory
CERCLA PFAS Rule Update
On Sept. 17, 2025, the EPA informed the U.S. Court of Appeals for the D.C. Circuit that it completed its review of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substance designations of perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) and decided to keep the rule in place and defend it in court. A declaration from John Evans, senior advisor in the Office of Land and Emergency Management, stated that, “consistent with EPA’s commitment to combat PFAS contamination, EPA has decided to keep the CERCLA Designation Rule in place.”
With the review now complete, the EPA moved the D.C. Circuit to lift the abeyance and order all parties to propose a new briefing schedule by Sept. 30, 2025. The EPA gave limited reasoning for this decision, except to note that it aligns with Administrator Lee Zeldin’s Powering the Great American Comeback Initiative and will advance Pillar 1: Clean Air, Land, and Water for Every American, as well as Pillar 3: Permitting Reform, Cooperative Federalism, and Cross-Agency Partnership. The filing also stated that “EPA will continue to engage with Congress and industry to establish a clear liability framework that ensures the polluter pays and passive receivers are protected.” This is consistent with Zeldin’s previous comments about potentially carving out liability for “passive receivers.”
In a press release, Zeldin acknowledged the significant concerns raised by Congress, local governments and the public regarding the liability of passive receivers. He emphasized that while the EPA will use its existing authority to address these challenges, a comprehensive solution requires new statutory language from Congress to fully protect passive receivers. Looking ahead, the EPA intends to develop a CERCLA section 102(a) Framework Rule to establish “a uniform approach to guide future hazardous substance designations, including how the agency will consider the costs of proposed designations.” The press release emphasizes that “EPA should take costs to manufacturers, passive receivers, consumers, and the economy at large very seriously,” highlighting the agency’s increased attention to the economic impacts of subsequent designations.
OMB Reviewing EPA’s Proposed Revision of TSCA Section 8(a)(7) PFAS Reporting Rule
On Aug. 29, 2025, the EPA submitted a proposed rule to the Office of Management and Budget (“OMB”) for review entitled “Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) Data Reporting and Recordkeeping under the Toxic Substances Control Act (TSCA); Revision to Regulation.” The details of the EPA’s revisions will remain unknown until the proposed rule is published in the Federal Register. However, the EPA has provided some hints about what may be in store for the rule.
As reported in the May 2025 edition of Contaminants Compass, the EPA issued an Interim Final Rule on May 12, 2025, extending the reporting period under the Toxic Substances Control Act (TSCA) Section 8(a)(7), to April 13, 2026, through Oct. 13, 2026. At that time, the EPA indicated that it was also considering reopening certain aspects of the PFAS reporting rule for public comment in light of Trump’s Executive Order 14219, “Unleashing Prosperity Through Deregulation.”
The TSCA PFAS reporting rule (40 C.F.R. Part 705) requires anyone who manufactured or imported PFAS in any amount between 2011 and 2022 to submit detailed information to the EPA. The PFAS reporting rule lacks exemptions found in other TSCA reporting rules, such as for article importers, research and development, impurities, byproducts or small manufacturers.
The EPA indicated that at least two of these exemptions — article importers and small manufacturers — may be added to the PFAS reporting rule. When Zeldin announced a PFAS action plan on April 28, 2025, the list of items included a plan to “[i]mplement section 8(a)7 to smartly collect necessary information, as Congress envisioned and consistent with TSCA, without overburdening small businesses and article importers.” OMB’s website provides an expected publication date of December 2025 for the proposed rule, with the final rule expected by June 2026.
EPA Issues Guidance on Collection and Analysis of PFAS Samples Under National Primary Drinking Water Regulation
In August 2025, the EPA published a document entitled “Requirements and Best Practices for the Collection and Analysis of Samples for the PFAS National Primary Drinking Water Regulation.” The document provides guidance to the regulated community regarding the collection, handling and analysis of samples that must be collected pursuant to the requirements of the Safe Drinking Water Act National Primary Drinking Water Regulation standards for PFAS (PFAS Rule), promulgated in 2024. Under the PFAS Rule, initial monitoring must be completed by April 26, 2027, with ongoing monitoring required thereafter.
For initial monitoring, the PFAS Rule requires the use of methods approved under 40 C.F.R. § 141.901 or under Appendix A to Subpart C of Part 141. For ongoing compliance monitoring, the PFAS rule requires the use of methods approved under 40 C.F.R. § 141.901.
The EPA’s best practices guidance document addresses:
- PFAS sampling kit requirements
- PFAS sampling precautions
- Laboratory sample receipt and sample storage requirements
- PFAS analysis requirements
- Field and laboratory blank analysis requirements
- Laboratory certification requirements
The best practices guidance document can be downloaded here.
GAO Issues Report on EPA’s Economic Analysis of PFAS National Primary Drinking Water Regulation
On July 30, 2025, the Government Accountability Office (GAO) issued a report entitled “Persistent Chemicals: Information on EPA’s Analysis of Costs for its PFAS Drinking Water Regulation.” The GAO was required by the Consolidated Appropriations Act of 2024 to review EPA’s economic analysis of compliance with the PFAS National Primary Drinking Water Regulation.
When the EPA issues a proposed regulation under the Safe Drinking Water Act (SDWA) that includes a maximum contaminant level (MCL), it must conduct a “Health Risk Reduction and Cost Analysis.” The analysis must include a determination of whether the benefits of the rule justify the costs of compliance, including quantifiable and nonquantifiable costs. When the EPA proposed MCLs for six types of PFAS in March 2023, it published its economic analysis under the proposed regulation. When the final MCLs for PFAS were issued in April 2024, the EPA published a revised economic analysis.
Many public water systems expressed concerns about the costs of implementing PFAS treatment to comply with the regulation, which will likely pass along to customers. Some stakeholders asserted that EPA’s economic analysis does not adequately represent these costs. Three lawsuits are challenging the final rule.
Due to this ongoing litigation, the GAO’s review of the EPA’s economic analysis focused on whether the EPA sought and published public comment on the EPA’s economic analysis of compliance with the PFAS MCLs, as required by the SDWA. The GAO did not evaluate the quality of the EPA’s estimates of the costs and benefits of the rule.
The GAO PFAS Report contains three takeaways:
- The EPA sought and published public comment on the cost estimate it prepared for its PFAS drinking water regulation, as required under the SDWA.
- The EPA’s initial estimate of quantifiable costs for the proposed regulation was lower than the revised estimate for the final regulation. The revised estimate was higher, in part, due to changes the EPA made in response to public comments and newly available data.
- The EPA also published descriptions of nonquantifiable costs and sources of uncertainty, as required under the SDWA.
The full GAO PFAS Report is available here.
PEER Petitions MAHA Commission to Address PFAS in Food Chain
As previously reported in the June 2025 edition of Contaminants Compass, the Presidential Commission to Make America Healthy Again (MAHA Commission) released The MAHA Report: Make Our Children Healthy Again on May 22, 2025. The MAHA report assesses the potential environmental, behavioral and medical drivers for childhood chronic diseases and identifies PFAS among the chemicals of concern for childhood exposure. On Aug. 13, 2025, Public Employees for Environmental Responsibility (PEER) announced it petitioned the MAHA Commission to remove PFAS from the food chain. The petition notes that while the MAHA report included a discussion of the EPA’s regulation of PFAS in drinking water, it did not address PFAS in food products. The PEER petition requests that the MAHA Commission “take immediate concerted action” to address three human exposure pathways for PFAS in the food chain — biosolid fertilizers made from sewage sludge, fluorinated plastic containers and pesticides.
As a first step, PEER recommends that the federal government adopt “a uniform government-wide definition of PFAS as a compound with at least ‘one fully fluorinated carbon,’ which has been adopted by European authorities, the Organization for Economic Cooperation and Development, the U.S. Geological Survey, and many states, including Colorado, Washington, Maine, Maryland, New York, and California.” Second, PEER recommends that “MAHA agencies … commit to use their regulatory, procurement, and grant-making authorities to eliminate official support for these products containing PFAS.”
MAHA Commission Releases Make Our Children Healthy Again Strategy Report
On Sept. 9, 2025, the MAHA Commission issued its Make Our Children Healthy Again Strategy Report, which “outlines a strategic approach for executive actions to address the childhood chronic disease crisis” based on the findings contained in the MAHA report. The MAHA strategy includes one recommendation related to PFAS:
“Water Quality, Fluoride, and PFAS: The CDC, informed by data and scientific review from NIH and EPA, will update recommendations regarding fluoride and PFAS in water. FDA will evaluate high dose liquid drop and tablet (consumable) dosages indicated for children and remove unsafe products. FDA will also take action against unapproved products, often marketed as supplements.”
The full strategy report is available here.
II. State Regulatory
Illinois Bans Intentionally Added PFAS in Certain Consumer Products by 2032
On Aug. 15, 2025, Gov. JB Pritzker signed into law HB 2516, which amends Illinois’ PFAS Reduction Act to ban certain consumer products containing intentionally added PFAS as of Jan. 1, 2032. Intentionally added PFAS will be banned in cosmetics, dental floss, juvenile products, menstrual products and intimate apparel.
The enacted bill defines intentionally added PFAS as “PFAS that are deliberately added during the manufacture of a product if the continued presence of the PFAS is desired in the final product or desired in one of the product’s components to perform a specific function in the final product” and excludes “PFAS that are present in the product due to use of water containing PFAS if the manufacturer took no action that resulted in the PFAS being present in the water.”
The enacted bill requires the Illinois Environmental Protection Agency to submit a report to the General Assembly by Aug. 1, 2027, that includes assessments of aspects of regulating “fluoropolymers consisting of polymeric substances for which the backbone of the polymer is either a perfluorinated or polyfluorinated carbon-only backbone or a perfluorinated polyether.”
Texas Law Limiting Liability for Beneficial Use of Treated Waste Takes Effect
On June 20, 2025, Texas Gov. Greg Abbott signed into law House Bill 49, which limits tort liability for individuals and entities involved in the treatment, production or transfer of produced water, a byproduct of oil and gas extraction. The law took effect on Sept. 1, 2025, and applies to causes of action filed after that date.
Under the enacted bill, any person (including an owner of the surface estate) who takes possession of fluid oil or gas waste, produces treated waste, and puts it to beneficial use (or transfers it to another person who will put it to beneficial use) is not liable in tort for any consequence stemming from the use of that treated waste. Further, an owner of the surface estate is not liable for personal injury, death or property damage arising from exposure to fluid oil and gas waste or treated waste. These protections do not apply in cases of gross negligence, regulatory noncompliance, or intentional wrongful act or omission.
The enacted bill also requires the Texas Commission on Environmental Quality to adopt rules regarding the treatment and beneficial use of produced water.
III. Litigation
Stay of Litigation Over PFAS Drinking Water Rule Lifted, EPA Moves to Vacate Regulation of Four PFAS
On July 22, 2025, the U.S. Court of Appeals for the D.C. Circuit granted the EPA’s motion to lift the stay of litigation challenging the MCLs for PFAS under the SDWA. The litigation was stayed for nearly seven months to allow new EPA leadership time to review the issues and determine how to proceed. On Aug. 7, 2025, the court ordered the parties to file motions to govern future proceedings by Sept. 10, 2025.
On Sept. 11, 2025, the EPA filed a motion for partial vacatur of the PFAS National Primary Drinking Water Regulation based on its reconsideration of the rulemaking process, which led the EPA to conclude that parts of the process were unlawful. The EPA requests vacatur of its determination to regulate three PFAS individually — perfluorononanoic acid (PFNA), perfluorohexane sulfonic acid (PFHxS) and hexafluoropropylene oxide dimer acid (HFPO-DA) — and to regulate mixtures of those PFAS and perfluorobutane sulfonic acid (PFBS) through a hazard index. In addition, the EPA requests vacatur of the MCLs for those PFAS. The EPA does not seek vacatur of the portions of the rule related to PFOA and PFOS, which the EPA concluded were lawfully promulgated.