Key Contacts
Rules Regarding Remediation of PFAS Under CERCLA And RCRA Advanced in 2024, but 2025 Fate Uncertain
In 2024, the Biden administration advanced rules designed to use CERCLA and RCRA cleanup authority to address PFAS impacts to soil and groundwater. While it is widely expected that the Trump administration will seek to undo many of the environmental policies of the Biden administration, whether the new remediation rules addressing PFAS will be reversed is more uncertain.
Most notably, EPA’s final rule designating PFOA and PFOS as hazardous substances under CERCLA became effective on July 8, 2024. In addition to triggering remediation obligations and allowing for recovery of cleanup costs, the designation established a release reporting threshold of one pound for each of these substances. An EPA enforcement memo released in April 2024 indicated that enforcement efforts would target PFAS manufacturers and users, and not municipal entities. Not surprisingly, however, various industry groups challenged the rule in the D.C. Circuit, with the industry briefs filed the day before the election.
In addition to the seven PFAS (PFBS, PFHxS, PFNA, HFPO-DA, PFBA, PFHxA, and PFDA) identified in EPA’s April 2023 Advanced Notice of Proposed Rulemaking, EPA proposed another pair of rules to add nine PFAS compounds as hazardous constituents under RCRA, and amending the definition of hazardous waste as it relates to releases from permitted treatment, storage, and disposal facilities (TSDFs) in February 2024. These rules, if finalized, would require TSDFs engaged in RCRA corrective action to investigate and, if necessary, remediate PFAS releases, and is an important regulatory precursor to designating wastes containing PFAS compounds as RCRA hazardous wastes.
The fate of these PFAS remediation rules in 2025 is uncertain. We expect that EPA will seek a stay of the pending D.C. Circuit challenge while the Trump administration formulates its own policy regarding PFAS and CERCLA. At the same time, the previous Trump administration at times touted its proactive use of CERCLA for brownfields cleanups. Accordingly, these recent PFAS remediation rules may not be rolled back in the next Trump administration.
