This decision is already being invoked in a separate D.C. Circuit challenge to EPA’s 2024 PFAS drinking water rule promulgated under the Safe Drinking Water Act (SDWA). Six days after the CERCLA decision, respondent intervenors cited it as supplemental authority in American Water Works Association v. EPA, No. 24-1188, ahead of oral argument scheduled for September 18, 2026. The Chamber of Commerce decision may assist the respondent intervenors on certain notice and comment and economic analysis arguments, but its significance should not be overstated. The principal challenges to the standards for the four PFAS subject to EPA’s Hazard Index-based maximum contaminant level (MCL) turn on requirements specific to the SDWA, and EPA itself now agrees that those provisions were promulgated through an unlawful process.

The SDWA Rule and the Pending Challenge
EPA’s 2024 PFAS National Primary Drinking Water Regulation established maximum contaminant level goals (MCLGs, non-enforceable public health target) of zero and MCLs (legally enforceable drinking water standard) of 4 parts per trillion for PFOA and PFOS. The rule also established individual MCLs of 10 parts per trillion for perfluorohexanesulfonic acid (PFHxS), perfluorononanoic acid (PFNA) and hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as GenX). For mixtures containing two or more of PFHxS, PFNA, HFPO-DA, and perfluorobutanesulfonic acid (PFBS), the rule established a Hazard Index MCL of 1. PFBS has no individual MCL and is regulated only through the mixture standard. The rule refers to those four substances collectively as the “Hazard Index PFAS.” The Hazard Index is calculated by dividing the measured concentration of each detected Hazard Index PFAS by its health-based water concentration and summing the results; the total may not exceed 1.

Petitioners raise four principal challenges to the rule. First, they assert that EPA failed to follow the proper process for making regulatory determinations and promulgating associated standards for the Hazard Index PFAS. Second, they argue the occurrence data—information from state monitoring programs showing whether and at what concentrations the substances occur in public water systems—was insufficient to support regulatory determinations for PFNA, HFPO-DA and mixtures of Hazard Index PFAS. Third, petitioners contend that the Hazard Index does not qualify as an enforceable MCL under SDWA. Finally, they challenge EPA’s evaluation of costs, benefits and feasibility.

EPA now takes divergent positions on the two groups of standards. For PFOA and PFOS, EPA followed the SDWA’s procedural sequence: notice and comment on a preliminary regulatory determination, followed by a final determination that precedes or accompanies proposed drinking water standards, and then a separate comment period on those standards. EPA continues to defend those provisions. For the Hazard Index PFAS, however, EPA proposed the preliminary regulatory determinations and the standards concurrently in 2023 and finalized both in 2024. EPA now agrees with petitioners that this concurrent approach violated SDWA’s requirement that the agency provide notice and comment on preliminary regulatory determinations before or concurrent with the proposal of drinking water standards. The respondent intervenors disagree and contend that SDWA permitted the concurrent approach.

Based on this concession, EPA moved for partial vacatur of the Hazard Index PFAS provisions and has separately proposed to rescind them through rulemaking. The D.C. Circuit denied EPA’s request for summary vacatur and subsequently declined to sever and hold the Hazard Index PFAS issues in abeyance pending the rescission. As a result, the court will address all challenged provisions at oral argument, even though EPA has withdrawn its defense of the Hazard Index PFAS standards and the respondent intervenors alone continue to defend those provisions.

The Respondent Intervenors Cite Chamber of Commerce on Notice and Costs
The respondent intervenors’ August 24 supplemental authority letter identifies two aspects of Chamber of Commerce that they contend support EPA’s drinking water rule: (1) the court’s treatment of notice and comment, and (2) its review of EPA’s economic analysis. Neither aspect directly resolves the SDWA-specific issues at the heart of this case.

• Notice and Comment. On notice, the respondent intervenors rely on the court’s holding that the Administrative Procedure Act (APA) did not require another opportunity to comment on data and calculations that “simply expand[ed] on and confirm[ed]” information provided with the proposed rule. In the CERCLA rulemaking, EPA’s proposed Economic Assessment quantified direct notification costs, discussed indirect costs qualitatively, and requested comment on whether and how to evaluate additional costs and benefits. In response to comments requesting a more detailed analysis, EPA’s final Regulatory Impact Analysis increased the upper end of its estimate of the annual administrative costs of reporting PFOA and PFOS releases under CERCLA from $370,000 to $1.63 million and quantified certain downstream costs that the proposed analysis had discussed only qualitatively. The court held that the final analysis was a logical outgrowth of the proposal because it addressed issues EPA had presented for comment and did not use a new methodology to reach a materially new or different conclusion.The respondent intervenors argue that this holding undercuts the petitioners’ claim of prejudice because the occurrence data added to the final drinking water rule confirmed EPA’s proposed conclusions. Petitioners, however, contend that the SDWA itself—not just the APA—required a second comment period, whether or not the added data independently triggered further notice under the APA. Petitioners also cite the expanded final dataset, including data from nine states that had not been available at proposal, to argue that they lost an opportunity to address the data and its implications for EPA’s occurrence and cost estimates. EPA separately argues that its process prevented comment on the proposed standards with the benefit of the final determinations, including its decision to regulate PFBS only as part of mixtures.
• Economic Analysis. The respondent intervenors also cite the CERCLA court’s rejection of challenges to EPA’s cost and benefit analysis. The court stated that EPA may estimate costs within a “broad zone of reasonable estimation” and held that the CERCLA petitioners had not met their “high” burden because EPA explained its approach and considered and rejected their preferred analysis. The respondent intervenors argue that the SDWA petitioners similarly have not met their burden. The petitioners contend that EPA underestimated compliance costs, relied on benefits it did not quantify and that lack adequate record support, and improperly analyzed several standards together. EPA continues to defend the economic analysis for PFOA and PFOS, while the respondent intervenors defend the analysis for the entire rule. They argue that EPA used inputs specific to each contaminant and reasonably considered some standards together because PFAS may occur together and treatment technologies may remove several PFAS at once, making separate analyses prone to double counting or omitting costs and benefits.That analogy has limits. In Chamber of Commerce, the court assumed without deciding that CERCLA required EPA to consider costs and benefits. The SDWA, by contrast, expressly requires EPA to publish a health risk reduction and cost analysis when proposing an MCL, to set each MCL as close to its MCLG as feasible, and, if the benefits of an MCL set at the feasible level would not justify the costs, to adjust the MCL to a level at which the benefits do justify the costs. The respondent intervenors therefore cite Chamber of Commerce only for the proposition that courts should defer to EPA’s economic judgments, not as resolving whether EPA satisfied these distinct SDWA requirements. Their letter also does not contend that the decision resolves the petitioners’ challenges to the occurrence determinations or the Hazard Index, which turn on the SDWA’s text and the drinking water rulemaking record.

Practical Implications
While these questions remain before the court, all provisions of the 2024 drinking water rule remain in effect. EPA’s proposed rescission of the Hazard Index PFAS provisions is not final, nor is its proposal to allow qualifying public water systems to request an extension of the PFOA and PFOS compliance deadline to 2031. Public water systems should therefore continue planning under the existing rule, which requires them to complete initial monitoring by April 26, 2027, and comply with the MCLs by April 26, 2029.

The rule is also relevant to parties involved in real estate transactions, project development and industrial operations. Finalized MCLs may affect remediation targets, treatment system design and the timeline for site closure. Parties conducting due diligence on acquisitions, financings or development projects should evaluate potential PFAS liabilities—including future compliance costs and the risk that pending litigation could alter the regulatory baseline—as part of their environmental risk allocation.

An MCL does not automatically become the cleanup level in every CERCLA matter. Because EPA set the PFOA and PFOS maximum contaminant level goals at zero, however, their MCLs may serve as applicable or relevant and appropriate requirements (ARARs) that CERCLA remedies must attain where the groundwater or surface water is a current or potential drinking-water source. Whether this standard applies will depend on site-specific circumstances. Due diligence, project planning and contractual allocation of PFAS risk should therefore account for the current rule, the pending litigation and EPA’s related rulemakings.

Pillsbury’s Environmental and Natural Resources practice advises clients on PFAS regulation, drinking water requirements, permitting, site investigation and remediation, CERCLA liability, litigation, and the identification and allocation of environmental risks in commercial agreements and transactions. We will continue to monitor the litigation and EPA’s related rulemakings.

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The decision leaves EPA’s PFOA and PFOS hazardous substance designations in place and provides guidance on the scope of EPA’s authority to make future hazardous substances designations under CERCLA Section 102(a). The decision also likely resolves a challenge to the rule that has spanned two presidential administrations. After taking office, the Trump administration had obtained an abeyance of the litigation challenging the Biden-era rule while EPA reconsidered its position. In September 2025, EPA informed the court that it had decided to retain the designations, while signaling that it would work with Congress and industry to address CERCLA liability concerns for “passive receivers.” The litigation then resumed, with the current Administration defending the rule.

“May Present Substantial Danger” Does Not Require Certainty
The 2024 rule marked EPA’s first use of its standalone authority under CERCLA Section 102(a) to designate additional hazardous substances. That provision authorizes EPA to designate additional substances that, “when released into the environment may present substantial danger to the public health or welfare or the environment.” The industry petitioners argued that EPA was required to show that substantial danger would occur following a release and that EPA’s possibility-based interpretation otherwise left the statutory standard without adequately fixed boundaries.

The court disagreed. Writing for the panel, Judge Patricia Millett explained that “may present substantial danger” expresses possibility rather than certainty. Requiring EPA to establish what will happen after every individual release, the court reasoned, would be inconsistent with both the statutory text and CERCLA’s reliance on evolving scientific evidence.

However, the court also emphasized that EPA’s authority is not unlimited. The phrase “substantial danger” requires a risk that is serious and real, rather than merely hypothetical. The panel did not define the outer limits of that standard because petitioners did not dispute that PFOA and PFOS could satisfy it. EPA’s rule relied on an extensive scientific record linking human exposure to the two substances with various health effects and carcinogenicity concerns. The Court’s ruling paves a legal pathway for additional hazardous substance designations under CERCLA Section 102 where EPA’s record supports a determination that risk is serious and real, albeit short of certain.

The opinion is notable because, applying Loper Bright Enterprises v. Raimondo, the court independently interpreted Section 102(a) rather than deferring to EPA’s construction of the statute but nevertheless concluded that the agency had the best reading of Section 102(a).

The court also rejected petitioners’ nondelegation and void-for-vagueness arguments, concluding that Section 102(a)’s science-based “substantial danger” standard supplies an intelligible principle to guide EPA and affords regulated parties fair notice.

Cost-Benefit and Uncertainty Challenges Also Fail
The petitioners separately argued that EPA’s final Regulatory Impact Analysis differed too substantially from the Economic Assessment released with the proposed rule that it amounted to a violation of the Administrative Procedure Act’s public notice requirements. The court, however, held that the final analysis was a logical outgrowth of the proposal and the comments EPA received. In particular, EPA had expressly requested input on whether and how to consider costs, and petitioners themselves had urged the agency to conduct a more detailed quantitative analysis.

The panel also rejected challenges to EPA’s cleanup cost estimates at both National Priorities List (NPL) and non-NPL sites and federal facilities, as well as its analyses of industry-specific impacts, benefits and effects on small businesses. Applying deferential arbitrary and capricious review, the court concluded that EPA had considered the relevant issues and reasonably explained its assumptions.

However, a key question remains open: The court did not decide whether CERCLA Section 102(a) requires EPA to consider costs when designating a hazardous substance. EPA assumed that it did, and the court adopted the same assumption for purposes of the case.

The court likewise rejected the argument that EPA could not act amid uncertainty about where cleanup actions may occur or what they may cost. Designation is an initial regulatory step; it does not itself select a site for cleanup, identify a responsible party or allocate response costs. Those determinations remain subject to additional site-specific processes and statutory requirements.

Further Review Remains Possible
Absent a timely petition for rehearing or an extension, the deadline to seek Supreme Court review falls in November 2026. A timely petition for rehearing would reset the period for seeking certiorari to run from the disposition of that petition. Whether rehearing would be granted or the Supreme Court would grant review are both uncertain. A petition for certiorari would not by itself suspend the rule; absent a stay, regulated parties should continue to treat the designations and their associated obligations as operative.

EPA’s Enforcement Policy Focuses on Significant Contributors, Not Passive Receivers
CERCLA’s liability scheme is intentionally broad. Liability is generally strict and retroactive and, where the harm is indivisible, may be joint and several. It can therefore reach not only PFAS manufacturers, but also current owners and operators, owners and operators at the time of disposal, arrangers, and certain transporters that fall within CERCLA’s statutory categories. For entities that did not manufacture or generate PFAS but received the chemicals in products, feedstocks, waste or treatment residuals, the designations sharpen longstanding concerns about so-called “passive receiver” liability.

The D.C. Circuit did not resolve those concerns. It emphasized that designation alone does not establish site liability and pointed to CERCLA’s site-specific processes, statutory limitations, settlement authorities, and EPA’s enforcement discretion as potential safeguards. But those mechanisms do not eliminate the threshold possibility that a passive receiver may qualify as a potentially responsible party or become involved in a cost-allocation dispute.

EPA sought to address that risk in its April 19, 2024, PFAS Enforcement Discretion and Settlement Policy Under CERCLA, issued in connection with the final rule. The policy describes how the agency intends to prioritize CERCLA enforcement involving PFOA and PFOS. EPA states that it will focus on entities that significantly contributed to releases, including manufacturers, entities that used PFAS in manufacturing, and other industrial parties, as well as federal agencies and facilities.

Where equitable factors do not support enforcement, EPA generally does not intend to seek response actions or costs from community water systems and publicly owned treatment works, municipal separate storm sewer systems, publicly owned or operated municipal solid waste landfills, publicly owned airports and local fire departments, and farms that apply biosolids. EPA may extend enforcement discretion to other parties based on factors such as their public-service role and degree of involvement in the use, storage, treatment, transport, or disposal of PFAS.

Those protections are conditional. Any party seeking the benefit of enforcement discretion must cooperate fully with EPA, including by providing requested access and information and not interfering with response activities, and must continue to comply with CERCLA’s release-reporting requirements. EPA also reserves the right to pursue an otherwise covered entity whose actions or inactions significantly contribute to or exacerbate the spread of significant PFAS contamination. Outside the protection afforded by a settlement, the policy does not prevent private parties from pursuing CERCLA cost-recovery or contribution claims.

Although the policy provides useful insight into EPA’s current enforcement priorities, it is nonbinding, creates no enforceable rights, does not modify CERCLA’s statutory liability framework, and may be revised, withdrawn, or replaced. It also does not bind private parties, which remain free to pursue CERCLA cost-recovery or contribution claims against entities covered by the policy.

In September 2025, EPA stated that a statutory amendment protecting passive receivers from liability is the “best, most enduring solution” and offered technical assistance to Congress on this issue. Unless and until Congress acts, passive receivers may remain exposed to private CERCLA claims and, in appropriate cases, federal enforcement notwithstanding EPA’s present policy.

Practical Implications
Absent appeal and injunction, the designations impose immediate obligations, including reporting releases above applicable thresholds, providing notice in certain federal property transfers, and identifying and marking qualifying shipments. Their more consequential effects, however, are likely to emerge through site-specific CERCLA proceedings. At active and legacy sites, the addition of PFOA and PFOS could expand ongoing investigations, affect remedy decisions, or prompt consideration of PFOA and PFOS in connection with existing remedies and site conditions.

At sites governed by existing CERCLA consent decrees, parties should also examine reopener provisions to assess whether the upheld designation, together with known or newly identified PFOA or PFOS conditions, may affect the continued appropriateness of the existing remedy or warrant additional response actions.

The designations also establish the hazardous substance predicate for natural resource damages (NRD) claims under CERCLA based on releases or threatened releases of PFOA or PFOS. While natural resource trustees still must establish a natural resource injury, causation, timing and other statutory requirements, PRPs at sites where PFOA or PFOS are present should be aware that NRD may now become an additional consideration and exposure to be managed.

The potential magnitude of PFAS-related NRD exposure is already evident in recent settlements under state NRD law. Most recently, on August 7, 2026, a federal court approved New Jersey’s combined settlements with DuPont entities and 3M valued at approximately $2.5 billion, including up to $365 million for NRD and restoration. Earlier resolutions include New Jersey’s 2024 Solvay and Arkema settlements, which together allocated approximately $88 million to NRD, Ohio’s 2023 settlement with Dupont for $110 million, and Minnesota’s 2018 $850 million settlement with 3M. Although these settlements arose principally under state-law authorities, their scale illustrates the potential stakes of PFAS-related trustee claims.

The decision also gives EPA a clearer legal pathway for considering additional PFAS or other substances under Section 102(a), but not without limits. It appears that future designations will require a substance-specific scientific record, adequate notice, reasoned responses to significant comments, and a rational explanation for the agency’s decision. EPA’s 2023 Advance Notice of Proposed Rulemaking provides a potential starting point: it sought information on seven additional PFAS—PFBS, PFHxS, PFNA, HFPO-DA, PFBA, PFHxA and PFDA—as well as their precursors and possible PFAS categories. EPA has indicated that its next step will be a Section 102(a) Framework Rule establishing a uniform approach to future hazardous substance designations, including how the agency will consider costs.

Companies that manufacture, use, transport, treat, or dispose of PFOA, PFOS or other PFAS should evaluate how the upheld designations affect compliance and risk management practice, including release-reporting procedures, historical operations, waste management arrangements, and site investigation and management practices. The decision also reinforces the importance of PFAS diligence in acquisitions and real property transactions, where the scope of diligence and negotiated risk allocation may significantly affect both deal terms and post-closing exposure. Participation in future rulemakings also remains important, particularly where regulated parties can provide data concerning potential costs, exposure pathways and site-specific consequences.

Looking ahead, the decision may also have implications beyond CERCLA. Although designation as a CERCLA hazardous substance does not itself change the regulatory status of PFOA or PFOS under other environmental statutes, PFAS regulation is already developing under other programs. Under the Clean Water Act, PFAS monitoring requirements have begun appearing in National Pollution Discharge Elimination System permits, and EPA has recommended that permitting authorities incorporate PFAS monitoring and related conditions where appropriate. Under the Resource Conservation and Recovery Act (RCRA), which governs the management of hazardous and non-hazardous solid waste, EPA has proposed listing nine PFAS, including PFOA and PFOS, as hazardous constituents. This would facilitate consideration of those substances under the RCRA corrective action program. The D.C. Circuit’s decision may provide additional momentum for these and other PFAS regulatory initiatives, although any further requirements would arise under the standards and processes applicable to those separate statutory programs.

Pillsbury’s Environmental and Natural Resource practice is focused on the practical implications of this evolving PFAS landscape across regulatory programs, including CERCLA, the Clean Water Act and RCRA. Our work encompasses PFAS-related permitting, waste management, site investigation and remediation, natural resource damages assessments and consent decrees, National Priorities List listing decisions, cost recovery actions, private contribution litigation, and administrative and civil settlements, as well as the identification, evaluation and allocation of PFAS-related environmental risks and liabilities in commercial agreements and transactions, mergers and acquisitions, and real estate transactions. For more information about how these developments may affect your business or operations, please contact the authors.

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In “EPA Proposes Major Changes to PFAS Drinking Water Rule,” Cara M. MacDonald and our PFAS team explain why the proposals mark a significant shift from the Biden administration’s April 2024 PFAS National Primary Drinking Water Regulation, which established nationwide enforceable standards for drinking water for six PFAS compounds.

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PFAS may be added to textiles, including those used in clothing, to impart the qualities of water- and stain-resistance.

In response to the CID, Lululemon stated that it phased out intentionally added PFAS in all its products in fiscal year 2023. Although the company outsources its manufacturing, it maintains a strict Restricted Substances List (RSL) consistent with the 2025 Apparel and Footwear International RSL Management (AFIRM) Group, caps total organic fluorine at 50 ppm, and takes steps to minimize any PFAS variants in its products by engaging in ongoing vendor audits and lab testing.

The Texas CID continues the trend of businesses, aside from those engaged in the manufacture of PFAS, becoming the subject of enforcement actions and litigation. More specifically, it may serve as a harbinger for similar actions against other clothing manufacturers. Furthermore, implicit in the complaint is an understanding that PFAS may be potentially harmful through dermal contact. This is notable since the initial wave of PFAS litigation in the second half of the last decade focused on harmful exposure through ingestion (e.g., potable water supplies impacted by PFAS).

All this may accentuate existing trends whereby companies investigate their supply chains for the potential presence of PFAS and seek certifications from supply chain partners that these chemicals are not present in their products. If they have not done so already, companies similarly situated to Lululemon, may wish to consider initiating such investigation, while those that have taken steps may wish to consider the adequacy of measures taken to death, as well as specific means (e.g., contractual indemnities, insurance, re-evaluating advertising claims) of potentially offsetting PFAS-related liabilities.

The post Texas Attorney General to Investigate Potential PFAS in Lululemon appeared first on PFAS Observer.

On April 2, EPA announced the release of the draft Sixth CCL (CCL 6) marking the first time that microplastics and pharmaceuticals have been designated as potential contaminants for regulation under the SDWA. The CCL 6 also lists, as a class, per- and polyfluoroalkyl substances (PFAS) and disinfection byproducts, as well as 75 chemicals and nine microbes.

• Microplastics are tiny plastic particles measuring less than five millimeters in size that are ubiquitous in the environment and easily ingested by humans. Because this is the first time that microplastics have been included on the CCL, there are still significant data gaps and more investigation is necessary to determine detection methods, potential sources, and impacts on human health.
• PFAS have been included on CCL lists as far back as 2009. The latest SDWA Unregulated Contaminant Monitoring Rule (UCMR 5) required regulated public water systems to sample for 29 PFAS chemicals. Notably, CCL 6 defines PFAS broadly, using the definition that EPA has developed for, among other things, the one-time PFAS Reporting Rule under Section 8(a)(7) of the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq. This definition is notably controversial, as it includes fluoropolymers, which are widely used in commercial and industrial applications and do not present the same concerns of persistence, bioaccumulation, and toxicity as certain other types of PFAS (for example, long-chain alkyl acid PFAS). It remains to be seen which specific PFAS are selected for inclusion on the next UCMR list or for MCLs (similar to those finalized in 2024 for PFOA and PFOS).
• The CCL employs a broad definition of pharmaceuticals, which covers any substance that meets the definition of a “drug” under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 321).
• Disinfection byproducts (DBP) are formed when disinfectants used for antimicrobial treatment in drinking water react with organic or inorganic materials. The EPA has listed 27 unregulated DBPs, 23 of which were previously listed on CCL 5.

EPA is seeking comments on the draft CCL 6 as well as on the process used to select the contaminants. Comments must be received on or before June 01, 2026.

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Maine
In 2021, Maine enacted 38 M.R.S. § 1614, a sweeping and, in many ways, unprecedented state law to regulate PFAS in consumer and commercial products. Administered by the Maine Department of Environmental Protection (MDEP), the law created a two-part framework. The first part required manufacturers to notify MDEP of products that they introduce into Maine commerce that contain “intentionally added” PFAS (broadly defined).¹ The second part entailed a broad prohibition on the sale and distribution of such products, to be implemented in several phases.

The law has since been amended to eliminate the initial notification requirement altogether due to difficulties that MDEP encountered in implementing this portion of the law.² But the series of product phaseouts remains, highlighted by a prohibition on the sale or distribution of almost all products with intentionally added PFAS by 2032.

However, exceptions to these phaseouts exist for products that the MDEP determines constitute “currently unavoidable uses” (CUUs). Such CUU designations are appropriate for products that confer a benefit, where the presence of PFAS is essential to product functionality, and where viable alternatives to PFAS do not exist. Industry has had the opportunity to petition MDEP for such designations and will have opportunities again in the future (see below).

The full schedule of sales prohibitions can be found on the MDEP website and is listed here.

Maine
(all dates effective January 1)

2023

2026

2029

2032

2040

Although MDEP has already solicited industry input on CUU determinations, opportunities to secure CUU status for products will exist in the future. Specifically, businesses must submit proposals for CUU determinations to MDEP no earlier than 60 months and no later than 18 months before the applicable sales prohibition.³ Once approved, CUUs are effective for a five-year period following either the effective date of the rulemaking or the date of the sales prohibition, whichever is longer. Although the formal notification deadline has passed for the 2026 product prohibitions, it is our experience that MDEP would still consider a well-argued case for a CUU determination.

With regards to enforcement, MDEP has indicated in its Chapter 90 rule that its focus will be on “encouraging voluntary compliance.” However, MDEP is empowered under 38 M.R.S. §§ 347-A – 349 to issue civil penalties of up to $10,000 for each day that manufacturers are in violation.

Minnesota
In 2023, the Minnesota legislature passed Minnesota Statute § 116.943—commonly known as Amara’s Law. As with the Maine law, Amara’s Law also regulates PFAS in consumer and commercial products by instituting a manufacturer reporting requirement, and a phased prohibition on the sale and distribution of products containing intentionally added PFAS.⁴ Because Minnesota has used Maine’s law as a model, many terms and definitions in the Minnesota Statute are similar or identical. This includes the definitions of “manufacturer,” “PFAS” and “CUU.”

Under Subdivision 2, every manufacturer of a product sold, offered for sale, or distributed in Minnesota that contains intentionally added PFAS must submit a notification to the Minnesota Pollution Control Agency (MPCA). All manufacturers are responsible for submitting notice to MPCA for each product and component unless manufacturers in the same supply chain enter into an agreement to establish their respective reporting requirements.⁵ Moreover, each manufacturer or group of manufacturers is obligated to either recertify its report annually or submit an updated report if a significant change is made to the product, new product information was provided to the manufacturer, or a new product not covered by an existing notice is sold or distributed in state.⁶

The rules and fees associated with this general notification requirement are currently being finalized by MPCA and are projected to be adopted by January 2026. The deadline for manufacturers to submit initial reports is July 1, 2026; however, MPCA must extend this deadline by 90 days if it determines that more time is justified for the manufacturer to comply with reporting requirements. Manufacturers may apply for an extension up to 30 days prior to the reporting deadline.

If a manufacturer wishes to continue selling a product with intentionally added PFAS after the phaseout provision is effective, it must apply to the MPCA for a CUU. Minnesota is currently drafting rules on the specific criteria and process for determining whether a product qualifies as a CUU. MPCA has submitted draft rules for public comment but there is no estimated timeline for the release of proposed rules or final adoption.

Under Amara’s law, the deadline for phasing out certain consumer products has already passed (see the table below) with the next deadline not until January 1, 2032. From that date on, it will be unlawful to sell, offer for sale, or distribute any product containing intentionally added PFAS in Minnesota unless it is designated as a CUU. The schedule of product phaseouts can be found on the MPCA website and is listed here.

Minnesota
(all dates effective January 1)

2025

2032

Notably, Amara’s Law also outlines four specific exemptions where the statute does not apply. These are (1) products whose PFAS content is already regulated under federal law, (2) medical devices and drugs regulated by the FDA, (3) products covered under existing Minnesota state PFAS statutes (notably firefighting foam and food packaging), and (4) the sale or resale of used products containing PFAS.⁷

The MPCA may enforce Amara’s law under Minnesota Statute §§ 115.071 and 116.072 which include civil penalties of up to $15,000 per day of the violation.

[1] Under the statute, a “manufacturer” is defined to include the brand owner and extends to the importer or the first domestic distributor if the manufacturer or brand owner does not have a presence in the United States.

[2] MDEP recently finalized rules which, most notably, replaced the initial reporting requirement system with one in which manufacturers apply for CUU determinations if they wish to continue selling their products after the applicable phaseout deadline. These rules are effective as of October 7, 2025.

[3] This timing requirement does not apply to sales prohibitions taking effect in 2026 which must have been submitted by June 1, 2025.

[4] “Intentionally added” means PFAS deliberately added to during the manufacture of a product where the presence of PFAS in the product or one of its components performs a specific function.

[5] The draft rules define a “component” as a distinct and identifiable element or constituent of a product. Component includes packaging only when the packaging is inseparable or integral to the final product’s containment, dispensing, or preservation.

[6] “Significant change” means a change in the composition​ of a product that results in the addition of a specific PFAS not previously reported in a​ product or component or a measurable change in the amount of a specific PFAS from the​ initial amount reported that would move the product into a different concentration range

[7] Food packaging is defined in § 325F.075 as “ a container applied to or providing a means to market, protect, handle, deliver, serve, contain, or store a food or beverage.”

The post Revisiting Maine and Minnesota PFAS Laws appeared first on PFAS Observer.

Hazardous Substance Listings
On September 17, 2025, EPA filed an unopposed motion to lift the EPA-requested abeyance in U.S. Chamber of Commerce v. EPA, No. 24-1193 (D.C. Cir. 2024), informing the Court that the Agency intends to keep in place the designations of PFOA and PFOS as hazardous substances under CERCLA. In a concurrent public statement, EPA confirmed that it will continue defending these designations in court and initiate a rulemaking to establish a uniform framework for future PFAS “hazardous substance” designations, including how costs will be considered.

The underlying litigation challenges the CERCLA designations as arbitrary and capricious on multiple grounds, including the alleged inadequacy of EPA’s regulatory impact analysis (discussed in detail in here). Given these arguments and the change in administration, many stakeholders anticipated that EPA would support rescission of the designations. The Agency’s recent filings, however, indicate that it intends to preserve them, signaling a continued commitment to maintaining PFOA and PFOS as hazardous substances.

On September 25, 2025, the D.C. Circuit granted EPA’s motion to lift the abeyance and set briefing to resume, with petitioners’ joint reply due November 14, 2025.

Maximum Contaminant Levels
Separately, on September 10, 2025, EPA filed a motion in American Water Works Association v. EPA, No. 24-1188 (D.C. Cir. 2024), seeking partial vacatur of certain elements of its April 2024 PFAS drinking water rule. That rule established maximum contaminant levels (MCLs) for six PFAS compounds: PFOA and PFOS, regulated individually, and PFHxS, PFNA, HFPO-DA (GenX) and certain mixtures, regulated collectively.

In May of 2025, however, EPA announced its intent to maintain its NPDWRs for PFOA and PFOS but withdraw the other four MCLs. During a July 2024 meeting of EPA’s National Drinking Water Advisory Council (NDWAC), the Agency indicated that by the end of 2025, it would propose a rulemaking to retain the MCLs for PFOA and PFOS but extend compliance deadlines to 2031. The September 10, 2025, motion is consistent with this announcement, as EPA requested that the Court vacate the MCLs for PFNA, PFHxS, HFPO-DA (GenX) and the combined Hazard Index for PFAS mixtures, while leaving the MCLs for PFOA and PFOS in place. Responses to the motion to vacate were filed; however, the case is currently stayed at EPA’s unopposed request in light of the lapse in federal appropriations.

The Unified Regulatory Agenda Indicates a More Comprehensive Regulatory Approach
EPA’s September 2025 Unified Regulatory Agenda further illustrates the Agency’s sustained yet more selective focus on PFAS regulation. Several pending and planned rulemakings indicate continued PFAS-focused regulatory activities from EPA, including:

• Clean Water Act Permitting. EPA is considering updates to PFAS-related requirements in National Pollutant Discharge Elimination System (NPDES) permits for sewage effluent treatment facilities. Currently, permit applicants are only required to report discharges of certain pollutants listed in existing regulations. (See 40 CFR 122.21.) A future rulemaking could add certain PFAS compounds to this list, though EPA has acknowledged that there are no currently approved analytical methods for PFAS in NPDES permitting.

The Agency anticipates a proposed rule by the end of 2025 and finalizing updates in 2027.

• Effluent Limitation Guidelines (ELGs). EPA is also considering ELGs for organic chemicals, plastics and synthetic fibers to address discharges from facilities at which PFAS are manufactured. ELGs set industry-specific wastewater standards based on the performance of the best available, economically achievable technology. Facilities are not required to use the specific technology EPA identifies in setting the limits, but they must meet the resulting discharge limits.

EPA first signaled its intent to revisit PFAS-related ELGs in its 2023 Effluent Guidelines Program Plan 15, which outlines the Agency’s strategy for reducing water pollution. In that plan, EPA noted that landfill ELGs should be revised to account for PFAS in landfill leachate. The September 2025 Unified Agenda indicates that a proposed ELG rulemaking is anticipated in 2026.

• TSCA Reporting Rule. EPA intends to revise the scope of the PFAS Reporting Rule under Section 8(a)(7) of the Toxic Substances Control Act (TSCA). The TSCA PFAS Reporting Rule creates a potentially time-consuming and onerous reporting obligation for any PFAS, including the importation of any PFAS incorporated within mixtures and articles. EPA has already moved to delay the PFAS Reporting Rule twice, with the required data submission window now set to open for most manufacturers on April 13, 2026, and close on October 13, 2026.

The Unified Agenda provides that “EPA plans to propose the incorporation of certain exemptions and other modifications to the scope of the reporting rule.” A proposed rule on this issue may be released by the end of 2025.

• Sixth Unregulated Contaminant Monitoring Rule (UCMR 6). The UCMR provides a mechanism for EPA to collect data regarding impacts to public water systems from “emerging contaminants,” for which the SDWA does not otherwise require sampling and mitigation. Both UCMRs 3 and 5 included PFAS among the 30 chemicals for which each rule required sampling. Although it is still unclear whether UCMR 6 will do so as well, several entities that responded to the request for comments on this rule—published in the Federal Register on February 8, 2024—advocated that PFAS be included within the sampling suite of chemicals.

Looking Ahead
Collectively, these actions indicate EPA’s apparent commitment to continuing to regulate PFAS, albeit with some targeted relaxations of regulatory requirements established under the Biden administration. Companies may find it worthwhile to stay abreast of any such developments in the fluid legal landscape involving PFAS. Pillsbury’s PFAS Task Force is monitoring these developments and assisting clients with compliance, litigation strategy and risk management amid this shifting regulatory environment.

The post EPA Sharpens the Focus of Its PFAS Regulatory Framework (October 2025 Update) appeared first on PFAS Observer.

Specifically, the law requires manufacturers (defined to include, depending on the situation, manufacturers, brand owners, importers, and distributors) of products with intentionally added PFAS (broadly defined to include any scenario in which PFAS is intended to be present in the final product[1]) to complete mandatory reporting to the Minnesota Pollution Control Agency (MPCA) of each product sold, offered for sale, or distributed by the manufacturer in Minnesota. The law also requires phased prohibitions on the sale of certain PFAS-containing products in the state.  Carpets, cleaning products, cookware, cosmetics, menstruation products, and more, will be prohibited from sale as early as 2025, with a general ban on all PFAS-containing products taking effect by 2032 unless the product and its use are deemed “currently unavoidable.”

Minnesota’s law is modeled after Maine’s PFAS-in-products statute (Me. Rev. Stat. tit. 38, § 1614), which imposed similar reporting and prohibition requirements. However, both states have since acknowledged practical challenges of compliance with the statutes as written, particularly for manufacturers with complex global supply chains, which has prompted the states to delay implementation pending modification of the laws accordingly.

In the case of the Minnesota law, MPCA on July 23, 2025, extended the deadline for manufacturers to provide notice regarding intentionally modified PFAS from January 1, 2026, to July 1, 2026. As MPCA stated in its guidance regarding PFAS reporting, the purpose of the extension was intended to give manufacturers ample time to (1) put agreements in place with suppliers to make reports on their behalf and (2) to become familiar with MPCA’s reporting platform, which will become available in Fall 2025.

Despite the postponed reporting date, businesses may wish to consider proceeding with diligence in terms of preparing their notifications. This is due to the ubiquity of PFAS in industrial, commercial, and consumer products, as well as the fact that supply chain investigations will likely be necessary to discern whether certain types of products—such as manufactured articles that are not accompanied with chemical specification sheets—contain PFAS. One way to screen such products for reporting is to consider whether they are intended to exhibit traits such as fire-, water-, grease- and stain-resistance, characteristics often associated with the presence of PFAS.

As to covered products, the following information must be provided:

1. A description of the product, including a Universal Product Code (UPC), stock keeping unit (SKU), or other numeric identifier;
2. The purpose of the PFAS used in the product;
3. The amount of each PFAS compound (by weight or concentration), as highlighted by its chemical abstracts service registry number;
4. The name and address of the manufacturer and a contact person representing the manufacturer;
5. Any additional information required by MPCA rulemaking.

With permission from MPCA, a manufacturer may supply the required information described above for a type or category of products rather than each individual product. MPCA may also waive all or part of this information if the agency determines that the information is already publicly available.

Manufacturers failing to comply with the requirements may face both criminal and civil penalties, though it remains to be seen how enforcement will be implemented in practice. MPCA is authorized to enforce the statute under its general environmental enforcement authority. Penalties may include criminal misdemeanor convictions, civil penalties of up to $30,000 per day of violation, injunctions to cease operations, actions to compel compliance with the laws, and administrative penalties of up to $25,000 per violation.

MPCA’s extension has provided manufacturers with more time to identify products containing intentionally added PFAS sold in Minnesota, and request that upstream suppliers disclose any intentionally added PFAS in products sold. In the meantime, Minnesota’s PFAS framework is still under development and further rulemaking will occur throughout late 2025 and into 2026.

[1] https://www.revisor.mn.gov/statutes/cite/116.943. Notably, “PFAS” is defined as any fluorinated organic chemical that contains a minimum of one fluorinated carbon atom, encompassing widely fluoropolymers. Which are widely used in commercial and industrial applications.

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EPA’s NPDWR for PFAS established six maximum contaminant levels (MCLs) for six PFAS compounds:

• PFOA and PFOS, regulated individually; and
• PFHxS, PFNA, HFPO-DA (GenX), and certain mixtures, regulated collectively.

Shortly after publication in 2024, multiple industry groups and water system stakeholders challenged the final rule in the D.C. Circuit. The briefing process began in late 2024 but remained incomplete when, following the inauguration of President Donald Trump in January 2025, EPA moved to pause the litigation to give the agency sufficient time to reconsider its regulatory approach. The Court granted EPA’s initial request to pause the case on February 7, 2025, and has since extended that pause three times.

In May of 2025, however, EPA announced its intent to (1) maintain its NPDWRs for PFOA and PFOS; but (2) rescind the NPDWR for hexafluoropropylene oxide dimer acid (HFPO-DA or GenX), perfluorononanoate (PFNA), and perfluorohexanesulfonic acid (PFHxS), as well as the hazard index used to evaluate the combined risk of those compounds and perfluorobutane sulfonic acid (PFBS). This announcement afforded EPA the ability to defend its revised position in Court.

On August 1, the parties submitted a joint request for a September 10 deadline for EPA to inform the Court of its position in the litigation and a September 17 deadline for a joint proposed briefing schedule.

Another challenge to a 2024 EPA rule regulating PFAS remains stayed. Earlier this month, the D.C. Circuit once again extended the abeyance in Chamber of Commerce of the United States v. EPA, Case No. 24-1193, a consolidated challenge to EPA’s final rule designating PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This latest stay, which will last until August 18, follows multiple extensions since the court first granted abeyance in February 2025 to provide time for new EPA leadership to evaluate the rule and determine the agency’s litigation posture. In its most recent filing, EPA explained that its review remains ongoing and is being conducted “within the broader context of EPA’s comprehensive strategy to address PFOA and PFOS.” The agency emphasized that continuing the abeyance would promote judicial efficiency and conserve party resources if ultimately it elects to revise or rescind the rule.

We will continue to monitor these cases and report on any developments.

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