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 significant regulatory, legislative and litigation developments, including:
- The D.C. Circuit’s recent ruling upholding EPA’s designation of PFOA and PFOS as CERCLA “hazardous substances”;
- EPA’s recent announcement of a non-targeted scientific study to screen for thousands of potential pollutants in drinking water;
- The creation of a new MDL concerning “non-AFFF” firefighter turnout gear in the District of Minnesota;
- A preliminary injunction sought by various interested parties in New Mexico federal court concerning New Mexico’s first-of-its-kind PFAS-labeling law; and
- Continued litigation in Arizona federal court following the FDA’s denial of a petition asking the agency to establish binding tolerances or action levels for certain PFAS in various foods, including milk, fish, eggs and produce.
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.
D.C. Circuit Upholds EPA Designation of PFOA and PFOS as “Hazardous Substances” Under CERCLA
On Aug. 18, 2026, the U.S. Court of Appeals for the D.C. Circuit denied petitions for review in Chamber of Commerce of the United States of America v. Environmental Protection Agency, No. 24-1193, in which seven industry trade groups challenged EPA’s 2024 final rule designating perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In practical terms, the designation triggers reporting obligations for releases of PFOA or PFOS exceeding one pound, federal land-sale disclosure requirements and hazardous-materials shipping rules and opens the door for EPA to compel responsible parties to pay for cleanup of these two “forever chemicals.”
The petitioners argued that EPA misinterpreted the statute, violated the Administrative Procedure Act’s notice requirements by providing insufficient notice to parties of its cost-benefit analysis, and acted arbitrarily and capriciously by deciding to regulate despite uncertainties about future costs.
Circuit Judges Patricia Millett, Gregory Katsas and Neomi Rao rejected the challenges. On the statutory-interpretation claim, the court found that the word “may,” in CERCLA’s authorization to designate substances that “may present substantial danger” to public health, carries its “ordinary” meaning of possibility, not certainty. The court further concluded that the “substantial danger” qualifier provides meaningful limits on EPA’s discretion and that the designation easily satisfied the nondelegation doctrine because Congress supplied an intelligible principle tying the agency’s authority to a public-health standard.
On the notice claim, the court reasoned that EPA’s final Regulatory Impact Analysis was a logical outgrowth of the earlier Economic Assessment published with the proposed rule and that EPA thus provided adequate notice to parties. The court found that, in particular, EPA had expressly invited comment on whether and how to quantify costs, and petitioners themselves had urged the agency to conduct the quantitative analysis they later challenged.
On arbitrary-and-capricious review, the court deferred to EPA’s technical judgments on cleanup-cost modeling, its reliance on marginal-cost assumptions at sites already undergoing remediation and its treatment of cost-shifting from taxpayers to polluters as a benefit consistent with CERCLA’s purpose. The court also emphasized that petitioners’ fears of immediate, sweeping liability were premature because there are numerous additional regulatory steps, including site investigation, National Priorities List placement through notice-and-comment rulemaking, remedial planning and statutory defenses to liability, that must occur before any responsible party faces actual cleanup costs.
The decision is significant for industries that manufacture, use, transport or dispose of products containing PFOA and PFOS — as well as adjacent sectors such as waste management, construction and water utilities — because it solidifies the legal foundation for EPA to hold responsible parties accountable for cleanup costs.
Litigation continues in the D.C. Circuit in American Water Works Association v. EPA, Case No. 24-1188, concerning separate challenges to EPA’s 2024 PFAS drinking-water rule promulgated under the Safe Drinking Water Act (SDWA), with arguments set for Sept. 18, 2026. Look for future Contaminants Compass updates on both the CERCLA designation and the challenges to the SDWA drinking-water rule.
EPA Launches Non-Targeted Study to Assess Drinking-Water Pollutants
On Sept. 9, 2026, EPA announced a new scientific study using non-targeted analytical methods, stating that it is intended to improve the agency’s understanding of potential pollutants in drinking water. Unlike conventional analytical methods designed to detect and identify specific chemicals, non-targeted analysis screens for thousands of potential pollutants simultaneously, which could include pharmaceuticals, PFAS and more than 1,000 other potential contaminants. According to EPA, the resulting insights will help the agency prioritize future actions to ensure that drinking water is safe.
The announcement was framed as part of EPA’s broader commitment to the Make America Healthy Again (MAHA) agenda. EPA Administrator Lee Zeldin stated that the “state-of-the-art study” would complement the agency’s existing actions under the SDWA and provide “clarity and peace of mind” for Americans concerned about unknown pollutants in their drinking water. HHS Secretary Robert F. Kennedy Jr. similarly praised the study, stating that EPA will “search for pharmaceuticals, PFAS, and other contaminants that have gone undetected” and “give Americans the truth about what is in their water.”
EPA noted that the study complements several existing SDWA regulatory actions. Earlier this spring, EPA released its draft Sixth Contaminant Candidate List, which for the first time designated both microplastics and pharmaceuticals as priority contaminant groups. In June, the agency proposed its Sixth Unregulated Contaminant Monitoring Rule, which would require monitoring for 30 unregulated contaminants using existing approved methods. According to EPA, the non-targeted analysis study is intended to fill gaps not addressed by the SDWA’s Contaminant Candidate List and Unregulated Contaminant Monitoring processes.
The study’s methodology is likely to face scrutiny from industry. Notably, EPA provided few details on the scope and methodology of the study beyond announcing the use of non-targeted analytical methods. The agency did not specify how the study will be conducted, who will be required to monitor for pollutants or how long the study will last. Non-targeted analysis is designed to broadly screen for the presence of chemical compounds in a sample, but it does not necessarily identify what specific chemicals are being detected or provide information about the associated health hazards. Rather than providing clarity or “peace of mind,” releasing broad screening data showing the presence of unidentified or poorly characterized contaminants could have the opposite effect — generating public alarm and increasing fear about the safety of drinking water supplies without offering actionable information about actual risk.
In re: Non-AFFF Firefighter Turnout Gear Marketing, Sales Practices and Products Liability Litigation Updates
On Aug. 18, 2026, the U.S. Judicial Panel on Multidistrict Litigation issued an order consolidating in the District of Minnesota lawsuits filed by 14 states and municipalities under In re: Non-AFFF Firefighter Turnout Gear Marketing, Sales Practices and Products Liability Litigation. Plaintiffs initially proposed different venues, including California, but at oral argument agreed on centralization in Minnesota.
The panel found that the actions involve common questions of fact and that centralization in the District of Minnesota serves the convenience of the parties and witnesses and promotes the just and efficient conduct of the litigation. The common factual questions arise from allegations that PFAS contained in firefighting turnout gear, including hoods, helmets, coats, pants, gloves, boots and other items, are toxic and can harm human health and the environment. The panel additionally found that all plaintiffs allege they purchased turnout gear containing PFAS and assert substantially similar claims for negligence, strict product liability, fraudulent misrepresentation and state consumer-protection-law violations on behalf of overlapping nationwide and state classes. The panel concluded that centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings and conserve resources.
Parties Seek Preliminary Injunction of New Mexico’s PFAS Labeling Rule
On Aug. 27, 2026, the U.S. District Court for the District of New Mexico heard oral argument on industry plaintiffs’ challenge to New Mexico’s PFAS labeling law in ACC v. Kenney, Case No. 1:26-cv-02130. The law imposes labeling and reporting requirements on manufacturers of consumer products containing intentionally added PFAS; it is slated to take effect on Jan. 1, 2027. Plaintiffs include nine industry trade associations led by the American Chemistry Council arguing that the rule’s labeling mandate violates the First Amendment and the dormant Commerce Clause.
On Aug. 28, 2026, defendants filed a motion to dismiss plaintiffs’ complaint for failure to state a claim and for lack of jurisdiction. The defendants argue that the labeling mandate does not violate the First Amendment because the law targets commercial speech and establishes a disclosure requirement for “purely factual and uncontroversial information,” both of which implicate weaker First Amendment interests. The defendants further argue that the PFAS labeling mandate does not violate the dormant Commerce Clause because the labeling requirement does not discriminate against out-of-state manufacturers and is therefore “well outside” the domain of the Clause.
The court delayed issuance of its initial scheduling order pending resolution of the preliminary injunction and motion to dismiss.
For additional information, see the October 2025, April 2026, and July 2026 Contaminants Compass editions.
Petitioners Try Again to Compel FDA to Regulate Certain PFAS in Food
On July 31, 2026, petitioner Tucson Environmental Justice Task Force filed a supplemental complaint in the U.S. District Court for the District of Arizona following FDA’s denial of its petition asking FDA to establish binding tolerances or action levels for certain PFAS in various foods, including milk, fish, eggs and produce.
The lawsuit was initially filed on Jan. 25, 2026, to compel FDA to respond to the petition. FDA issued a denial of the petition in June, and petitioners subsequently filed a supplemental complaint seeking judicial review of FDA’s denial.
Petitioners assert the following:
- FDA’s evaluation of food contamination with individual PFAS in one food type at a time, as opposed to assessing the total risks accounting for multiple sources and routes of exposure, is contrary to FDA’s statutory mandate under 21 U.S.C. § 346. Additionally, FDA did not meaningfully address concerns raised by petitioners that PFAS are carcinogenic and widespread in the U.S.;
- FDA failed to adequately coordinate with EPA and the U.S. Department of Agriculture regarding findings that no safe levels of exposure to certain PFAS have been identified, as well as regulations and efforts to address PFAS contamination during dairy farming;
- FDA “overreached its authority” by declining to set tolerance limits;
- FDA stated that “scientific understanding, toxicological information and analytical methods continue to evolve for PFAS,” but “the prospect of better understanding in the future[] does not excuse an agency from its obligation to regulate”;
- FDA’s denial is a deviation from prior agency practice, citing FDA’s tolerance limits for PCBs, lead and arsenic;
- FDA is not excused from carrying out its statutory duties to protect the food supply even though the task of setting tolerances may be complex and burdensome, as FDA asserted; and
- FDA’s case-by-case enforcement of PFAS contamination in food, rather than setting generally applicable tolerances or action levels, creates “a regulatory regime that lacks transparency, consistency, and reasoned decision-making.”
FDA’s response was due by Sept. 14, 2026.
For additional information on the petition and FDA’s denial, see the July 2026 Contaminants Compass edition.
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.