The U.S. Environmental Protection Agency (EPA) issued a press release on April 28 setting forth its “first, not the last” statement regarding “major” actions and initiatives it intends to undertake to address human health and environmental issues associated with per- and polyfluoroalkyl substances (PFAS). Particularly in contrast to more granular actions the Trump administration has announced on other environmental issues, the PFAS announcement can be viewed as EPA Administrator Lee Zeldin’s general outlook and broad, cross-programmatic goals on PFAS regulation—not (yet) any concrete or detailed changes to the Agency’s regulatory course.
Background
This week’s announcement is the most recent in a series of broad strategic PFAS platforms from EPA: first, the 2019 “PFAS Action Plan” issued under the first Trump administration, followed by the 2021 Biden-era “PFAS Strategic Roadmap” (link to 2024 update). The 2019 PFAS Action Plan marked the first major public-facing PFAS strategy framework from EPA, identifying goals ranging from research and risk communication to concrete “priority actions” for which the Agency would pursue rulemaking activities. The PFAS Strategic Roadmap issued by the Biden EPA set forth a more prescriptive and stringent regulatory approach. Notably, both the Trump- and Biden-era strategy documents contemplated addressing PFAS (at least, some PFAS) under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Safe Drinking Water Act (SDWA)—two rulemaking goals that became reality in April 2024 with the promulgation of a final rule listing PFOA and PFOS as CERCLA hazardous substances, and another final rule establishing first-time enforceable drinking water standards for certain PFAS.
The April 28 Press Release
Since the January 20 inauguration, industry, environmental and community stakeholders, and states and tribes have awaited a clear signal from EPA regarding how it intends to proceed on PFAS matters in this second Trump term. The administration has sought and received stays in litigation challenging Biden-era PFAS rules, including the CERCLA and SDWA rules. While President Trump has indicated a deregulatory push on several environmental fronts, it has not been clear whether these efforts would extend to PFAS regulation—particularly since some of EPA’s key PFAS rulemakings were initiated, at least conceptually, under President Trump. In recent weeks, however, EPA representatives have made comments indicating plans to work with regulated stakeholders on implementation of the PFAS drinking water regulations, suggesting they do not intend to walk back the SDWA rules. (Indeed, many of those Biden-era policies remain displayed on EPA’s PFAS webpage, even as the Agency removes or modifies website references to prior EPA initiatives on other environmental matters across program offices.)
EPA’s recent announcement is simply that—a press release identifying agency objectives and plans in rather vague language. This announcement does not detail specific regulatory actions EPA plans to take to effectuate those objectives. The Agency does state, though, that “[t]his list is the first, not the last, of all decisions and actions EPA will be taking to address PFAS over the course of the Trump Administration. There will be more to come in the future across EPA’s program offices to help communities impacted by PFAS contamination.”
Here are some highlights from the recent announcement:
- Agency Lead: EPA will “[d]esignate an agency lead for PFAS to better align and manage PFAS efforts across agency programs.”
- CERCLA: The announcement avoids any indication of how EPA plans to deal with the litigation currently under way regarding the hazardous substance designation of PFOA and PFOS. (While the litigation has been held in abeyance at the request of the government, to allow the government the opportunity to reevaluate the rule, the government was due to file motions to govern further proceedings on April 25; however, on that date, EPA filed an unopposed motion to extend the litigation stay.) Instead of tackling the litigation questions, EPA’s announcement focuses on “protecting” so-called passive receivers under CERCLA, including “[working] with Congress and industry to establish a clear liability framework that operates on polluter pays and protects passive receivers.” EPA also notes that it plans to evaluate how best to use Resource Conservation and Recovery Act (RCRA) authorities “to address releases from manufacturing operations of both producers and users of PFAS.”
- Toxic Substances Control Act (TSCA): Stakeholders have hotly debated how EPA will proceed to implement and enforce its October 2023 rule imposing a one-time reporting obligation on manufacturers of PFAS (including importers of PFAS substances and PFAS-containing articles) under TSCA section 8(a)(7). Many groups have urged the Agency to ease burdens imposed on small businesses and article importers under the rule, including by potentially expanding exemptions and/or further extending the reporting window (currently scheduled to open July 11, 2025). Notably, because TSCA section 8(a) was amended by the National Defense Authorization Act (NDAA) for fiscal year 2020 to require promulgation of a PFAS reporting rule, EPA arguably does not have discretion to even propose repealing the rule in its entirety—something the Agency appears to acknowledge by addressing the reporting rule in the “Fulfilling Statutory Obligations” section of the press release. Specifically, EPA states in the press release that it will implement the reporting rule “to smartly collect necessary information, as Congress envisioned and consistent with TSCA, without overburdening small businesses and article importers.” This indicates that the Agency is open to considering, or perhaps already evaluating, revisions to the reporting rule that could ease burdens for article importers and small business—including, for example, possibly reconsidering whether to exempt imported articles from the scope of the rule, and/or whether to extend a de minimis exemption for small amounts of PFAS.
- Destruction/Disposal Guidance: The Agency commits to updating its PFAS Destruction and Disposal Guidance annually (rather than every three years) as “EPA continues to assess the effectiveness of available treatment technologies.”
Perhaps just as notable, here are some matters the Agency did not address:
- No specific PFAS were singled out—nor does EPA address, in this announcement, questions involving whether and how to regulate the thousands of PFAS substances: i.e., as individual substances, as categories of chemicals, or in broad strokes. Many in the regulated community would like to see some distinctions among PFAS (e.g., fluoropolymers).
- Unlike in the PFAS Strategic Roadmap, there is no mention of environmental justice concerns or consumer protections. This is consistent with the current administration’s move away from all environmental justice initiatives across EPA programs.
- There is no mention of voluntary programs to reduce PFAS use and release or related stakeholder engagement or incentive structures.
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Venable will be following the Trump administration’s implementation of the items in the Release and future “lists” closely. Please do not hesitate to contact us if we can provide further information or otherwise be of assistance.