Extracted from Law360
On Feb. 20, the U.S. Department of Defense issued a memorandum updating its guidance on the destruction and disposal of PFAS-containing materials sent to offsite commercial facilities.
The memorandum effectively ends the department's moratorium on the incineration of PFAS-containing waste, and establishes a revised framework for handling its growing PFAS waste streams.
More broadly, the memorandum establishes a permit-based commercial disposal regime that identifies approved categories of facilities, outlines the technical requirements for each, and directs department entities to select among those options based on waste type, available infrastructure, emissions controls and cost effectiveness.
The policy shift was enacted in response to operational challenges within the department as it transitions away from PFAS-based firefighting foam for land. That transition has generated large volumes of PFAS-containing concentrate and rinse water.
The department's memorandum notes that these volumes, along with PFAS waste from spill response and cleanup programs, have exceeded its ability to store the materials.
The revised guidance applies only to PFAS-containing materials being sent to off-site commercial facilities, and does not cover household or consumer products. The memorandum also excludes the selection of remediation treatments under the Comprehensive Environmental Response, Compensation, and Liability Act, also known as the Superfund laws.
However, it brings within scope waste streams generated during PFAS cleanups that are later sent to commercial disposal or destruction facilities.
For hazardous waste regulated under the Resource Conservation and Recovery Act consisting of mixed PFAS-containing materials, disposal practices must follow RCRA while also applying the department's revised criteria.
Approved Disposal Pathways
The department's new guidance authorizes several disposal options, each with strict conditions and oversight.
Incineration is no longer categorically prohibited, but that option is limited to facilities that meet certain requirements.
The department will allow incineration of PFAS-containing materials only at facilities holding both RCRA and Clean Air Act permits, operating afterburner or secondary chamber temperatures above 1,100 degrees Celsius, and conducting PFAS emission testing per the U.S. Environmental Protection Agency's current protocol.
According to the memorandum, these high-temperature conditions "break down PFAS and significantly minimize PFAS emissions."
The memorandum's other approved options are similarly constrained. Carbon reactivation is allowed only for used granular activated carbon, and only at units with both RCRA and Clean Air Act permits.
Hazardous waste landfills must be properly permitted under all applicable regimes, and liquid wastes such as aqueous film-forming foam concentrate must be solidified before disposal.
Solid waste landfills may be used only if they have composite liners, as well as gas and leachate collection and treatment systems, and they are not an option for aqueous film-forming foam concentrate.
Underground injection control wells may be used only for liquid waste. Thermal desorption may be used only for soils, and only where off-gas is collected and treated with a thermal oxidizer; the memorandum states expressly that thermal desorption is not incineration.
Emerging technologies, including supercritical water oxidation and other approaches identified by the U.S. Environmental Protection Agency, may be considered only if they have all required environmental permits or regulatory approval and the department has been notified in advance.
The guidance states that no single method is ranked above the others. Instead, department entities must choose among these options based on criteria relevant to specific waste streams.
The memorandum underscores that the EPA retains its authority to regulate PFAS waste, and positions its new guidance within that existing regulatory framework.
Implications for Contractors and Facilities
For companies working with the military, environmental contractors and regulated waste facilities, the updated guidance may expand disposal pathways for PFAS waste that has accumulated across defense installations and related facilities.
But the memo heavily emphasizes "informed, fact-based decisions" backed by data. To comply with the revised guidelines, companies must show that their incinerators, landfills, reactivation units or other systems hold the required environmental permits and comply with permit conditions.
Specifically, facilities should maintain detailed records of treatment effectiveness, as well as emission and material compositions. They should ensure their operations meet temperature and control requirements and that testing data — such as emission test reports — can be readily provided to the department.
Contractors must verify that subcontractors, including landfills, carbon reactivation units or underground injection wells, possess the required permits tailored to the waste matrix — e.g., composite liners for solid waste landfills.
Facilities should review current disposal subcontracts to ensure alignment with stringent thermal and permitting specifications to mitigate compliance risk and prepare for site inspections or audits tied to their permits.
Contractors working with the department should expect stricter contractual requirements, including flow-down obligations, approved disposal methods and enhanced recordkeeping. Deviations from approved destruction and disposal pathways may trigger breach risk, False Claims Act exposure or disallowance of costs.
Although cost was not a primary screening factor in the department's analysis of available options, the memorandum suggests that the department expects contractors to compete on cost-effectiveness. This may include transportation costs for remote bases, as well as preprocessing costs for solidifying liquids or separating PFAS from mixed wastes.
Key Takeaways
The department's updated guidance replaces the former incineration moratorium with a structured, permit‑based framework that expands disposal options while imposing strict technical and compliance requirements upon commercial facilities handling PFAS waste.
Although high‑temperature incineration is now allowed, all approved pathways remain tightly regulated, and contractors must be prepared to demonstrate permit compliance, operational controls and robust data practices.
Because the guidance is interim and acknowledges data gaps, contractors should anticipate further revisions, increased oversight and potential narrowing of acceptable technologies. Practice compliance, supply chain diligence and contract review are critical to mitigate risk.
As PFAS waste volumes continue to grow and technologies evolve, staying updated with EPA standards and future department policy revisions will be essential for organizations managing PFAS disposal.