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01.20.2022 Legal News

EPA Continues PFAS Regulatory Efforts with RCRA Rulemaking Announcement

Fall 2021 was a busy time for the EPA and its regulatory agenda for per- and polyfluoroalkyl substances (PFAS).  PFAS has been a focus of the Biden EPA, with around seven actions or news releases as of September 2021, and October saw another three significant announcements from EPA.  These announcements include: the release of the agency’s comprehensive Strategic Roadmap to confront PFAS contamination nationwide; publication of a final human health toxicity assessment for GenX chemicals; and Administrator Regan’s October 26th announcement that EPA will be initiating the rulemaking process for two actions to address PFAS under the Resource Conservation and Recovery Act (RCRA).

The last of EPA’s October PFAS regulatory progression actions marks a substantial step toward more concrete PFAS rules with significant implications.  The October 26th announcement comes 124 days after and in response to Governor of New Mexico, Michelle Lujan Grisham’s, June 23, 2021, petition to EPA to designate PFAS as hazardous under RCRA as either a class of chemicals or individually.  Petitions by state governors to the EPA administrator to identify or list a material as a hazardous waste such as this one are allowed pursuant to 42 U.S.C. § 6921(c) and are required to be acted upon by EPA within 90 days.

Administrator Regan’s Response partially grants the Petition by initiating two actions.  While EPA does not designate or propose to designate PFAS as hazardous as a class, the first initiated rulemaking proposes to add four specific PFAS chemicals as RCRA Hazardous Constituents under 40 CFR Part 261, Appendix VIII.  The PFAS chemicals identified are the usual suspects, and include all PFAS chemicals for which the EPA has published human health toxicity assessments: (1) perfluorooctanoic acid (PFOA); (2) perfluorooctane sulfonic acid (PFOS); (3) perfluorobutane sulfonic acid (PFBS); and (4) GenX (hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt).  EPA published final human health toxicity assessments for PFOA and PFOS in 2016, PFBS in April 2021, and GenX in October 2021.  The second action stated in the Response is another initiated rulemaking which purports to modify the regulations of the RCRA Corrective Action Program.  The Response states this proposed modification would “clarify” that the Corrective Action Program has the authority to require the investigation and cleanup of wastes that meet the definition of hazardous waste and that emerging contaminants can be addressed through RCRA corrective action.

Each of the initiated rulemaking actions are significant individually, but, together, they represent a considerable EPA action toward PFAS that could affect several industries while also forming the foundation for further major regulation implications.  The identification of these chemicals in Appendix VIII is a crucial step needed under section 261.11(a)(3) of the RCRA regulations for listing of solid wastes that contain these chemicals as a hazardous waste, if other specified regulatory factors are met.  The listing would also subject these chemicals to RCRA corrective action requirements which, coinciding with the second rulemaking effort, permits EPA to issue administrative orders and other actions pursuant to the RCRA corrective action process.  In addition to whatever investigation or cleanup actions related to these chemicals could be required of a facility with contamination, the subjection of these chemicals to the RCRA Corrective Action program could further result in civil judicial actions, criminal prosecutions, and citizen suits for those who violate these RCRA corrective action requirements.

Of course, these announced regulatory actions must go through formal notice and comment rulemaking procedures before they can become enforceable, so the substantive form that new regulations may take is far from settled; however, once promulgated, each delegated state program will have to adopt any RCRA amendments that are at least as stringent as the federal rule.  As always, states are also free to adopt more stringent requirements in their authorized RCRA programs.

New Mexico Governor’s 42 U.S.C. § 6921(c) Petition to EPA

EPA Response to 42 U.S.C. § 6921(c) Petition