Contaminants Compass: May 2026 Edition

Contaminants Compass 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 discusses:

• EPA’s proposal to extend compliance deadlines for PFOA and PFOS maximum contaminant levels (MCLs) and rescind regulatory determinations and regulations for PFHxS, PFNA, HFPO-DA and hazard index mixtures
• EPA’s withdrawal of a proposed Resource Conservation and Recovery Act (RCRA) corrective action rule
• A federal court order requiring the FDA to respond to a citizen petition seeking PFAS limits in food
• The FDA’s release of infant formula contaminant testing results
• EPA’s motion to dismiss the Wild Virginia citizen suit over perfluorooctanesulfonic acid (PFOS) in Virginia waters
• W.L. Gore & Associates’ motion to dismiss a putative consumer class action over GORE-TEX garments
• State regulatory updates, including the scope of Maine’s PFAS cookware ban and related implementation update, Minnesota’s extension of PFAS product reporting deadline and the Texas attorney general’s investigation of Lululemon over potential PFAS in activewear
• Start of the EU’s groundwater protections

Look for new editions every month, and feel free to reach out to the McGuireWoods PFAS & Emerging Contaminants Practice Area with questions regarding PFAS issues.

---

I. Federal Regulatory

EPA Proposes to Extend Compliance Deadlines for PFOA and PFOS MCLs and Rescind Regulatory Determinations and Regulations for PFHxS, PFNA, HFPO-DA and Hazard Index Mixtures

On May 18, 2026, EPA Administrator Lee Zeldin announced two proposed rules as part of what EPA describes as a “comprehensive, lifecycle-based strategy” to address PFAS in drinking water. The first proposed rule would establish a federal exemption framework allowing eligible public water systems to extend compliance with the PFOA and PFOS MCLs of 4.0 parts per trillion (ppt) from April 26, 2029, to April 26, 2031. The extension would not be automatic. Public water systems would need to submit a request to EPA documenting that they cannot comply due to “compelling factors” such as capital improvement timelines, construction cost escalation, certified operator availability, financial limitations and the time needed to secure funding. Systems with PFOA or PFOS sample results at or above 12 ppt would also be required to implement at least two interim control measures during the exemption period, such as providing water pitchers certified to reduce PFAS, delivering alternative water supplies, installing point-of-use or point-of-entry devices or conducting community outreach. The PFOA and PFOS MCLs themselves remain unchanged.

The second proposed rule would rescind the regulatory determinations and associated National Primary Drinking Water Regulations (NPDWR) for four additional PFAS: perfluorohexane sulfonic acid (PFHxS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA or GenX) and mixtures of these three PFAS plus perfluorobutane sulfonic acid (PFBS) regulated through a hazard index (HI). EPA concluded that the agency exceeded its Safe Drinking Water Act (SDWA) authority by simultaneously issuing preliminary regulatory determinations and a proposed rule for these contaminants in March 2023 and by finalizing both on April 26, 2024. According to EPA, the prior administration’s approach “thwarted the fundamental processes required under the statute and affects not just the NPDWR but also the simultaneously issued regulatory determinations for these contaminants.” If finalized, the proposal would remove the 10 ppt MCLs for PFHxS, PFNA and HFPO-DA individually, the HI MCL of 1 for mixtures, and related definitions, monitoring, compliance and reporting requirements. EPA maintains that the rescission is consistent with SDWA’s anti-backsliding requirements because no MCL compliance deadlines have passed and “it simply maintains the status quo protection that is currently afforded to the public.” Comments on both proposals must be submitted within 60 days of publication in the Federal Register, and EPA will hold a virtual public hearing on July 7, 2026. As covered in previous Contaminants Compass issues, the final regulatory determinations and portions of the 2024 PFAS NPDWR for these contaminants remain the subject of pending litigation in American Water Works Association v. EPA (D.C. Cir. No. 24-1188).

EPA Withdraws Proposed RCRA Corrective Action Rule

On May 8, 2026, EPA withdrew its proposed rule, Definition of Hazardous Waste Applicable to Corrective Action for Releases From Solid Waste Management Units. The Biden administration had published the proposed rule in February 2024 with the goal of addressing PFAS and other emerging contaminants through cleanup requirements at permitted treatment, storage and disposal facilities nationwide. The proposal would have revised the hazardous waste definitions in 40 CFR sections 260.10 and 270.2 so that they expressly incorporated the broader statutory definition in RCRA section 1004(5). It also would have added RCRA sections 3004(u), 3004(v) and 3008(h) to the list of authorities in section 261.1(b)(2). The effect would have been to confirm on the face of the regulations that corrective action reaches substances that satisfy the statutory definition of hazardous waste even if they are not yet listed or identified in the regulatory framework.

The Trump administration determined, after reviewing public comments, that the rule was unnecessary. The agency pointed to two main reasons: (1) Corrective actions in practice already overwhelmingly involve wastes and constituents that the regulations list or identify, and (2) for the limited situations involving unlisted substances, the omnibus permit authority under RCRA section 3005(c)(3) and 40 CFR section 270.32 already allows regulators to impose protective permit conditions. The agency also acknowledged commenters’ concerns that the broader definition would confuse facility owners on which substances they must address and which units qualified as solid waste management units, potentially complicating routine permit processes such as the information submission requirements under section 270.14(d)(3). EPA noted that existing corrective action regulations and their longstanding interpretations remain in place and that the agency still has authority under RCRA sections 7003 and 3013 and CERCLA section 106 to require investigation and abatement at RCRA facilities when hazardous substances threaten health or the environment. EPA’s separate February 2024 proposal to list nine PFAS as hazardous constituents under RCRA Appendix VIII remains pending. For regulated parties and states, the withdrawal closes off one avenue for bringing PFAS within the scope of RCRA corrective action at permitted facilities.

Federal Court Orders FDA to Respond to Citizen Petition Seeking PFAS Limits in Food

A federal court in Arizona ruled on April 13, 2026, that the FDA must respond to a citizen petition seeking limits on PFAS contamination in food products by June 30, 2026, or earlier if the agency issues a final response in the interim. The case, Tucson Environmental Justice Task Force v. United States Food and Drug Administration (No. CV-25-00035-TUC-JAS), stems from a citizen petition (Dkt. No. FDA-2023-P-4826-0001) filed in November 2023 asking the FDA to adopt temporary tolerances for 30 PFAS compounds “in/on” a variety of foods, including produce, dairy, eggs, seafood and grain products.

The plaintiffs argue that the FDA’s failure to act on the petition for more than two years violates federal law and leaves the public exposed to PFAS without regulatory guardrails. The court’s order also requires the parties to file a joint status report within 14 days of the FDA’s response, or by July 14, 2026, whichever is earlier, and defers all other litigation deadlines pending further order. The outcome could reshape compliance expectations for agricultural producers, food packagers, seafood operations and processors if the FDA moves to set enforceable PFAS thresholds in food.

FDA Releases Infant Formula Contaminant Testing Results

On April 29, 2026, the FDA published results from its “largest and most comprehensive examination of chemical contaminants” in U.S. infant formula to date. The agency tested 312 samples spanning 16 brands as part of Operation Stork Speed, the FDA’s Closer to Zero initiative aimed at reducing childhood exposure to contaminants, and the FDA’s routine surveillance program. The results generated more than 120,000 data points covering lead, mercury, cadmium, arsenic, PFAS, pesticides, phthalates and a non-phthalate plasticizer. The FDA determined that the overall findings confirmed the safety of the infant formula supply, noting that the vast majority of samples showed undetectable or very low contaminant levels.

The sample set included 278 powdered formulas, 11 concentrated liquids and 23 ready-to-feed products, drawing from cow’s milk, soy and amino acid-based protein sources. The 312 infant formula results form part of a larger 344-sample special survey that also covered toddler drinks. Results for the toddler drink portion will be issued once additional Closer to Zero testing wraps up. Each sample was analyzed for 30 individual PFAS analytes, and five of those compounds were detected in infant formula products marketed to the most vulnerable consumer population. Detected concentrations spanned a wide range, from 0.51 ppt up to 150 ppt across the five compounds. PFOS was the most pervasive, appearing in roughly half of all samples tested, at concentrations between 0.51 and 6.0 ppt, with 95% of samples registering below 2.9 ppt of PFOS. The agency stated that certain results prompted follow-up with manufacturers and that it intends to continue sampling formula products, including new market entrants, as part of its ongoing oversight.

II. PFAS Litigation

EPA Moves to Dismiss Suit Over PFOS Listings in Virginia Waters

On April 29, 2026, EPA moved to dismiss Wild Virginia, Inc. v. EPA (E.D. Va. No. 3:25-cv-01043). The case challenges EPA’s approval of Virginia’s 2024 Clean Water Act (CWA) Section 303(d) impaired-waters list while taking no action on fish-tissue PFOS data for segments of the Middle Chickahominy River watershed. Wild Virginia claims EPA had a nondiscretionary duty to approve or disapprove the entire list within 30 days.

EPA argues that the CWA does not impose a nondiscretionary duty on the agency to approve or disapprove state 303(d) lists, and that the citizen-suit provision allows challenges only when such a duty is not discretionary. EPA also contends that Wild Virginia’s Administrative Procedure Act claim fails because the agency expressly declined to take final action on the PFOS-related segments.

On May 5, 2026, Wild Virginia replied in support of its partial summary judgment motion, arguing EPA admitted it missed the 30-day statutory deadline, and no material facts are in dispute. Wild Virginia seeks a declaration that EPA violated its duty, vacatur of the partial approval and an order requiring EPA to act on the full list within 30 days. The outcome could define the scope of EPA’s discretion when states omit waterbody-pollutant combinations with known PFAS contamination from their 303(d) lists.

Gore-Tex Moves to Dismiss PFAS Claims Over Garments

On April 22, 2026, W.L. Gore & Associates Inc. moved to dismiss a putative consumer class action in the U.S. District Court for the District of Delaware brought by 18 plaintiffs who allege they bought GORE-TEX garments from third-party retailers between 2018 and 2024 and were misled by labeling and sustainability statements such as “committed to sustainability,” “environmentally sound” and “PFC* Free Laminate.” The complaint asserts 38 claims for fraudulent concealment and violations of consumer fraud statutes under the laws of 18 states.

Gore argues the complaint rests on speculation because the plaintiffs do not allege which PFAS their garments contained, in what amounts, how the garments were harmful, or which specific statements each plaintiff saw and relied on. Instead, they rely on studies that did not test their products. Gore seeks dismissal for lack of standing, failure to plead fraud with particularity, lack of standing for injunctive relief and untimeliness. Gore cites a growing body of decisions dismissing PFAS consumer claims that fail to link general PFAS studies to the products plaintiffs actually purchased.

III. State Regulatory

Maine PFAS Cookware Ban Raises Questions About Scope

As covered in previous Contaminants Compass issues, Maine’s Jan. 1, 2026, sales prohibition on cookware containing intentionally added PFAS took effect alongside parallel bans on cleaning products, cosmetics, dental floss, juvenile products, menstruation products, textile articles, ski wax, upholstered furniture and fluorinated containers under 38 M.R.S. §1614. The Maine Department of Environmental Protection’s January 2026 implementation report confirms a broad reading of “cookware product,” which the department interprets to reach not only pots, pans and utensils but also kitchen appliance components in direct contact with food (such as a refrigerator’s water and ice dispenser), reusable water bottles, and non-heat items such as trays and bowls. The department also clarified that “houseware” turns on whether a product is primarily designed or marketed for residential use, so secondary commercial use, such as an office breakroom coffee maker, does not avoid the prohibition.

Additional prohibitions phase in on a rolling timeline: artificial turf and outdoor apparel for severe wet conditions in January 2029; any product containing intentionally added PFAS in January 2032 absent a department “currently unavoidable use” (CUU) determination by rule; and HVAC and refrigeration equipment, refrigerants, foams and aerosol propellants in January 2040. The department adopted implementing rule Chapter 90 in April 2025 and, on Oct. 2, 2025, approved its first two CUU designations, for an internal cartridge valve and a vented cap liner used in certain industrial cleaning-product containers, each effective until Jan. 1, 2031. The department is not recommending statutory changes in 2026 but plans to revise Chapter 90 and consolidate future CUU determinations into a single annual rulemaking, so manufacturers in the cookware, small appliance, food-contact and container sectors should track that activity and assess whether reformulation or supply-chain changes are needed before the later phaseout dates.

Minnesota Pushes PFAS Product Reporting Deadline to September

On April 15, 2026, the Minnesota Pollution Control Agency (MPCA) extended the initial deadline for manufacturers to report products containing intentionally added PFAS under Amara’s Law from July 1, 2026, to Sept. 15, 2026. Manufacturers or groups of manufacturers must report covered products sold, offered for sale or distributed in Minnesota, including products sold only online, and must pay a related fee. Subsequent reports are due on Feb. 1 each year when required, and the MPCA will make reported information publicly available after review, except for trade secrets.

Manufacturers will submit reports through the PFAS Product Reporting Information System for Manufacturers (PRISM). Minnesota’s adopted reporting and fee rules add several practical options for manufacturers, including grouping similar products, allowing groups of manufacturers to report together, using concentration ranges instead of exact PFAS amounts, requesting waivers or extensions and paying a one-time flat fee of $800 per manufacturer.

Manufacturers seeking an extension or waiver must submit request forms and fees, which must be postmarked by Aug. 16, 2026. Reports for manufacturers that receive extensions will be due Dec. 14, 2026. The MPCA states that PFAS product reporting is intended to support safer alternatives, inform consumers and help Minnesota move toward ending nonessential PFAS use by 2032. Manufacturers selling products in Minnesota should use the additional time to coordinate with suppliers, identify who will submit reports, confirm whether product components contain intentionally added PFAS and work through the PRISM reporting guide before the initial reporting deadline.

Texas Investigates Lululemon Over Potential PFAS in Activewear

Texas Attorney General Ken Paxton announced on April 13, 2026, that his office served a civil investigative demand on Lululemon USA Inc. to determine whether the activewear company has deceived consumers about the safety of its products. The investigation will focus on whether Lululemon’s apparel contains PFAS that its “health-conscious customers would not expect” given the brand’s marketing on sustainability and performance.

As part of the inquiry, the attorney general’s office plans to review the company’s internal Restricted Substances List, its product testing protocols and its supply chain practices to assess whether the products actually meet the safety standards Lululemon advertises.

The investigation continues a pattern of state enforcement actions targeting companies whose sustainability or wellness marketing may not align with their products’ chemical composition. Companies in the apparel and consumer products space should ensure that their marketing claims, internal testing protocols and supply chain disclosures are consistent with one another and supported by current product-level data.

IV. International Regulatory

EU Adopts Stricter Rules on PFAS and Other Pollutants in Surface and Groundwater

On May 11, 2026, an EU directive revising the lists of pollutants in surface waters and groundwater became effective, amending the Water Framework Directive, the Environmental Quality Standards Directive and the Groundwater Directive. The revisions update the EU’s lists of regulated water pollutants to add certain PFAS (including trifluoroacetic acid) and additional pesticides and pharmaceuticals, and to address microplastics, indicators of antimicrobial resistance and sensitive groundwater ecosystems for the first time. The directive also tightens limits for several previously listed substances, moves six substances that no longer pose an EU-wide risk to new lists of pollutants of national concern, and introduces a requirement to test “effect-based monitoring,” which assesses combined risk to water quality rather than measuring individual pollutants. For PFAS specifically, the directive adds a groundwater quality standard of 0.0044 µg/L for the sum of four priority PFAS — PFHxS, PFOS, PFOA and PFNA — and a surface-water environmental quality standard for a group of 25 PFAS expressed as PFOA equivalents, reflecting recent monitoring showing PFAS at more than 70% of EU groundwater measuring points.

The European Chemicals Agency has a central role in preparing future revisions of the pollutant lists and standards, consistent with the EC’s “one substance, one assessment” approach under its Chemicals Strategy for Sustainability. The directive also strengthens transboundary cooperation, makes water-quality data collection and reporting more dynamic, and allows more flexible application of the principle of nondeterioration of water status to facilitate certain economic activities while preserving environmental and health safeguards. EU member states must transpose the amendments to the three directives by Dec. 22, 2027.

---

McGuireWoods supports clients as they assess and mitigate their PFAS risk, develop and apply business operational responses to changing PFAS laws and regulations at federal and state levels, and defend litigation as it arises, including navigating and coordinating national scientific defenses in novel contexts. For questions, contact the authors or a member of the PFAS & Emerging Contaminants Practice Area.