“Contaminants Compass” is a monthly newsletter that provides updates, legal observations and actionable tips to navigate the evolving legal “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).
This edition discusses updates from the EPA administrator, changes in PFAS monitoring under the proposed 2026 National Pollutant Discharge Elimination System (NPDES) Multi-Sector General Permit, congressional action on the CERCLA Hazardous Substance Rule, recent developments in the aqueous film-forming foam (AFFF) multidistrict litigation (MDL), New Mexico’s new PFAS regulations in consumer products and Canada’s approach to regulating PFAS as a class of toxic substances.
Look for new editions every month and feel free to reach out to the McGuireWoods team with questions regarding PFAS issues.
I. What’s Happening on the PFAS Federal Regulatory Front
EPA Administrator Confirms PFAS Is Priority While Balancing Stakeholder Concerns
EPA Administrator Lee Zeldin is attempting to address apprehensions from Republican senators and water utilities regarding the PFAS National Primary Drinking Water Rule (NPDWR). Concerns include the financial impact and challenges that water utilities will bear to meet the rule’s requirements and the short compliance timeline. Republican senators also have expressed concerns about the low thresholds set for PFAS in drinking water. In February 2025, the U.S. Court of Appeals for the D.C. Circuit granted a stay in the litigation challenging the April 2024 PFAS NPDWR that set limits for six PFAS. Previous issues of Contaminants Compass covered the NPDWR and the resulting litigation. When this stay expired, on April 8, 2025, the EPA asked the D.C. Circuit for another 30 days to review the underlying rule. This request was granted, and motions are now due on May 12, 2025.
At the Environmental Council of the States’ 2025 Spring Meeting, Zeldin acknowledged these concerns but noted his ongoing commitment to addressing PFAS issues, saying “PFAS is a big concern of mine.” In 2021, Zeldin, as a former U.S. congressman from New York, voted in favor of the PFAS Action Act that would have required limits on PFAS in drinking water. He is now considering additional issues related to PFAS in biosolids as well as fluoride in drinking water, following discussions with Health and Human Services Secretary Robert F. Kennedy Jr.
While Zeldin indicated that no decisions have been made yet on how this current administration will address PFAS, he did note that he intends to listen to various stakeholders, including water utilities and those concerned about PFAS in the environment.
Zeldin emphasized the need for action on PFAS without passing on costs to consumers and suggested that the EPA’s Office of Water and other departments could benefit from research support from the Office of Research and Development, which is targeted for elimination by the Trump administration. Zeldin emphasized that he remains committed to cooperative federalism and ensuring staff efforts align with statutory obligations, particularly in chemical regulation.
Changes in PFAS Monitoring Under Proposed 2026 NPDES Multi-Sector General Permit
The proposed 2026 National Pollutant Discharge Elimination System (NPDES) Multi-Sector General Permit (MSGP) introduces changes, including new stormwater sampling procedures for PFAS evaluation. This proposed permit addresses stormwater discharges from 30 industrial sectors — including chemical manufacturing, textiles and landfills. The EPA asserts that PFAS can migrate from sites through precipitation and stormwater runoff, potentially impacting human health through recreational activities, consumption of aquatic species and drinking water, depending on the proximity of discharges to public water supplies.
The proposed permit requires quarterly monitoring of 40 PFAS compounds listed in Method 1633. There are no benchmark thresholds or mandated follow-up actions, as the monitoring is “reporting only” and the aim is to gather comprehensive data on PFAS presence and exposure pathways of various chemicals. This requirement applies to all operators in 23 sectors. The EPA identified these sectors as likely having industrial activities that could expose PFAS to precipitation, potentially resulting in PFAS discharge in stormwater. By collecting data over the five-year permit term from 2026 through 2031, the EPA seeks to enhance understanding of PFAS contamination and inform future regulatory decisions.
The proposed permit is open for public comment until May 19, 2025.
Congressional Updates on CERCLA Hazardous Substance Rule
Lawmakers are renewing efforts to provide Superfund liability relief to passive receivers of PFAS contamination. Discussions are focused on the implications of designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under CERCLA and the EPA’s enforcement discretion policy, a topic explored in previous Contaminants Compass issues.
House members have reintroduced H.R.1267 – Water Systems PFAS Liability Protection Act to exempt water and wastewater treatment facilities from CERLCA liability for the release of covered PFAS. U.S. Sens. Cynthia Lummis and Shelley Moore Capito have expressed their support for providing Superfund liability carveouts to “passive receivers.”
Environmental groups oppose these carveouts, arguing they could lead to more exemptions. They also argue that the EPA’s enforcement discretion policy is a better approach to addressing concerns. The Trump administration’s stance on the rule is uncertain, as the EPA sought and was granted a stay in litigation to review the CERCLA hazardous substance designation, giving the EPA until April 25, 2025, to examine the rule and file future proceedings in the case.
During recent confirmation hearings for Sean Donahue, the nominee for the EPA’s Office of General Counsel, U.S. Sen. Mark Kelly, asked questions on the CERCLA hazardous substance designation. Donahue declined to comment directly but noted, “I know there are other tools that many have argued are better suited for dealing with the PFAS problem without unleashing an enormous amount of liability that could be felt throughout the entire economy.”
The Senate Environment and Public Works Committee has launched a bipartisan initiative to streamline CERCLA implementation. While not specifically focused on PFAS, it held a legislative hearing titled “Improving Future Management of the Superfund Program” on April 9, 2025, to explore changes to the Superfund process.
McGuireWoods will continue to monitor the discussions around the CERCLA hazardous substance designation of PFOA and PFOS.
II. What’s Happening in PFAS Litigation
Fourth Circuit Vacates Lower Court Decision
The U.S. Court of Appeals for the Fourth Circuit reviewed the denial of 3M’s and other defendants’ attempt to remove lawsuits filed by Maryland and South Carolina under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). The lawsuits alleged PFAS contamination of Maryland’s and South Carolina’s waterways from products, including AFFF used by the U.S. military. Maryland and South Carolina filed separate lawsuits for AFFF and non-AFFF PFAS contamination. The district courts remanded the non-AFFF cases to state court, accepting the states’ disclaimers that they did not seek damages for AFFF-related contamination. The Fourth Circuit vacated these remand orders, accepting 3M’s argument that PFAS contamination was “intermingled to the point that it is impossible to identify their source,” satisfying the nexus requirement for federal officer removal. The court emphasized the need for a federal forum when litigation involves federal interests, such as compliance with military specifications, and remanded the cases to determine if 3M met other elements of federal officer removal criteria.
The court concluded that the states’ claims for mixed PFAS contamination from various locations require a fact finder to address causation and allocation questions, which are merits questions suited for federal court, and held that 3M’s military AFFF production is inextricably related to the states’ general allegations of PFAS contamination, despite attempts to separate federal and nonfederal work. Judge Henry Floyd dissented, arguing the connection was “too tenuous” for federal removal. The Fourth Circuit granted en banc review and related briefing is underway.
Streamlining AFFF MDL: Case Management Program to Enhance Product Identification at 12 Selected Sites
The AFFF MDL introduced a new case management program that aims to streamline product identification and enhance efficiency and accuracy in legal proceedings. Since 2018, this MDL in the U.S. District Court for the District of South Carolina, In Re: Aqueous Film-Forming Foams Products Liability Litigation, has consolidated thousands of lawsuits across the United States related to PFAS exposure in AFFF and other fire-resistant products.
The program introduced in January as Case Management Order (CMO) No. 32 seeks to address challenges in product identification. The court targeted discovery of contamination sources, focusing on a representative sample of sites such as airports, military bases and fire-training centers. A collaborative procedure selected 12 sites for targeted discovery over six months, limited to product identification. The sites are located in Florida, Alaska, Massachusetts, New Hampshire, Maryland, Louisiana and Indiana. On April 1, 2025, the court found the list of sites acceptable and granted the Joint Motion Submitting Proposed Real Property Product ID Sites to the Court pursuant to CMO 32.
Proposed Nationwide Class Action for Municipal Water Consumers in AFFF MDL Litigation
Also in the AFFF MDL litigation, on March 25, 2025, proposed class representatives, who identify themselves as users of drinking water from municipal public water systems in the United States, filed a motion for leave to file class action complaints. The proposed plaintiffs sought permission to file class action lawsuits on behalf of themselves and others in similar circumstances and assert claims for private nuisance, strict product liability, negligence, trespass, civil conspiracy, constructive fraud and fraudulent transfer against major PFAS manufacturers. Although these are multi-plaintiff complaints, they are not considered personal injury cases. All proposed class members allegedly have experienced contamination of their water supplies and properties. It appears that this is the first proposed class action of its kind in the country.
III. What’s Happening in State Regulations
New Mexico Passes PFAS Regulation in Consumer Products
New Mexico’s House Bill 212, the Per- and Poly-Fluoroalkyl Substances Protection Act, which aims to regulate the use of PFAS in consumer products to protect human health and the environment, passed in the House of Representatives by 62-1, and Senate by 37-3. Starting Jan. 1, 2027, the bill prohibits the sale, distribution or offering for sale of certain products containing intentionally added PFAS, with phased implementation. Initially, the ban will apply to cookware, food packaging, dental floss and juvenile products. By Jan. 1, 2028, it will include carpets or rugs, cleaning products, cosmetics, fabric treatments, feminine hygiene products, textiles, textile furnishings, ski wax and upholstered furniture. By Jan. 1, 2032, manufacturers will be prohibited from selling or distributing consumer products with intentionally added PFAS, unless New Mexico’s Environmental Improvement Board adopts a rule providing that the use of the PFAS substance in that product is an “unavoidable use.”
The bill authorizes the board to adopt rules to enforce these prohibitions and establish a stewardship program for the collection of PFAS-containing products. The bill also mandates manufacturers to disclose information about PFAS in their products, including the purpose and quantity of PFAS used, and to send this information to the Department of Environment by Jan. 1, 2027.
House Bill 212 also outlines exemptions from its material restrictions and reporting obligations for certain product categories, such as federally regulated pesticides. Section 3 of HB 212 contains an exemption for “a product that contains fluoropolymers consisting of polymeric substances for which the backbone of the polymer is either a per- or polyfluorinated carbon-only backbone or a perfluorinated polyether backbone that is a solid at standard temperature and pressure.” This could be the first “fluoropolymer exemption” in a state law, which could have implications for regulated industries, many of which have argued that fluoropolymers are not harmful and should not be regulated the same as other PFAS.
Testing requirements will be imposed to ensure compliance, and any products found to contain intentionally added PFAS without proper disclosure may be prohibited from sale. Enforcement measures include civil penalties for violations with fines up to $15,000 per day and up to $25,000 per day for noncompliance with administrative orders. With the exception of the “fluoropolymer exemption,” the bill’s approach aligns with PFAS regulations in California, Colorado, Maine, Minnesota, New York and Vermont, which implemented measures to control PFAS in consumer products. This reflects a growing trend of states adopting stricter environmental laws to curb PFAS contamination.
On April 8, 2025, Gov. Michelle Lujan Grisham signed HB 212 into law, along with HB 140, which amends the definition of “hazardous waste” and authorizes New Mexico’s Environment Improvement Board to require the cleanup of AFFF containing intentionally added PFAS.
IV. International Updates
Canada Regulates PFAS as Class of Toxic Substances
In March 2025, the government of Canada published key documents to address PFAS. These include the final State of PFAS Report, the Risk Management Approach for PFAS and a Proposed Order to add the class of PFAS excluding fluoropolymers to Part 2 of Schedule 1 of the Canadian Environmental Protection Act, 1999 (CEPA). The Risk Management Approach and the Proposed Order are open for a 60-day public comment period.
The State of PFAS Report offers a qualitative assessment of the fate, sources, occurrence and potential impacts of PFAS on the environment and human health in Canada. This final report incorporates feedback from a 60-day public consultation on previous draft versions. Under section 64 of the CEPA, a substance is considered toxic if it enters or may enter the environment in a way that harms the environment or biodiversity, poses a danger to life-dependent environments, or poses a danger to human life or health in Canada. The report provides that PFAS, excluding fluoropolymers, meet CEPA section 64(a) and 64(c) criteria due to their potential harm to the environment, biodiversity and human health, but not section 64(b), as they are not considered a threat to life-dependent environments. The report concludes that the class of PFAS meets one or more criteria set out in section 64 of the CEPA. The report recognizes uncertainties about understanding the characteristics of various PFAS structures and mixtures of PFAS. Despite these uncertainties, the report emphasizes that a precautionary, class-based approach is necessary to protect the environment and public health from anticipated adverse effects.
The Risk Management Approach proposes new risk management actions through a phased prohibition of PFAS excluding fluoropolymers under subparagraph 77(6)(c)(i) of the CEPA. Phase 1 targets unregulated uses in firefighting foams. Phase 2 focuses on consumer applications such as cosmetics, natural health products and nonprescriptive drugs, textile uses, ski wax, and food packaging, prioritized based on costs, benefits and available alternatives. Phase 3 addresses the uses that require further evaluation, including medical devices, fluorinated gas applications, prescriptive drugs, industrial food contact materials, industrial sectors such as mining and petroleum, and transport and military application. The approach aims to reduce PFAS releases and exposure, but exemptions will be considered when necessary, considering feasible alternatives and other socioeconomic factors. To inform risk management decisions, stakeholders are asked to provide information by May 7, 2025, on the availability of PFAS alternatives, transition timelines, socioeconomic impacts, and PFAS quantities in products.
The Proposed Order under the Chemicals Management Plan allows the government to add the class of PFAS to Part 2 of Schedule 1 to the CEPA. This enables the minister of health and the minister of environment to propose risk management instruments that prioritize pollution prevention actions, including potential prohibitions, to address environmental and human health risks associated with these substances. Under the CEPA, toxic substances posing the highest concern are recommended for Part 1 of Schedule 1, while others are added to Part 2, focusing on pollution prevention actions, which may include total, partial or conditional prohibitions. Adding substances to Part 2 does not impose regulatory requirements on businesses, resulting in no incremental impacts. This allows ministers to develop risk management tools for these substances. The government will consult stakeholders on future risk management instruments and consider their potential impacts. NGOs have expressed concerns that listing in Part 2 may not adequately address risk management impacts, while industry supports excluding fluoropolymers and requests similar exclusions for other PFAS.
Fluoropolymers are excluded from these measures due to their distinct exposure and risk profiles, but additional evaluation is planned for 2026. The government invites stakeholders to provide additional information on alternatives to PFAS and the socioeconomic impacts of transitioning away from these substances. Companies are urged to get ready for heightened PFAS regulations, as consultations and regulatory measures are set to begin in 2025.
