On June 23, New Mexico Governor Michelle Lujan Grisham petitioned U.S. EPA to include PFAS under the federal Resource Conservation and Recovery Act as a listed hazardous waste, which would set a clear regulatory path for New Mexico and dozens of other states grappling with PFAS contamination.
“In the absence of a federal framework, states continue to create a patchwork of regulatory standards for PFAS across the U.S. to address these hazardous chemicals. This leads to inequity in public health and environmental protections,” said Lujan Grisham. “This petition seeks swift EPA action to create a federal framework that will equally protect all communities across the U.S. by declaring PFAS what it is – a hazardous waste under federal law.”
New Mexico Environment Department Cabinet Secretary James Kenney delivered the same message during testimony on June 9 before the Senate Committee on the Environment & Public Works. The Governor’s petition was also shared with the full committee and entered into the hearing docket.
“The federal government sued New Mexico to prevent having to clean up PFAS in 2019 and continues its litigation today, saddling New Mexicans with the cost of litigation and the cost of cleanup,” Kenney noted. “This Department will not back down nor tacitly agree with the federal government in abandoning communities that need our help in protecting their health, environment, property values, and economy. PFAS is a hazardous waste and must be federally regulated as such so states can protect communities.”
ECOS Executive Director Don Welsh forwarded the petition to ECOS members on June 25. For more information, see here.
October 26 Update: U.S. EPA Agrees to Act on New Mexico Petition to Regulate PFAS under RCRA
On October 26, U.S. EPA outlined plans to initiate two rulemakings in response to a petition from New Mexico Governor Michelle Lujan Grisham urging that PFAS be identified as a hazardous waste under the Resource Conservation & Recovery Act (RCRA).
In one action, the agency will initiate a process to propose adding four PFAS as RCRA Hazardous Constituents under Appendix VII. The agency will evaluate data for PFOA, PFOS, PFBS, and GenX to establish a record to support this decision. This rulemaking, which is a necessary step towards regulating PFAS as a listed hazardous waste, would subject these four chemicals to corrective action requirements.
The second rulemaking will clarify that emerging contaminants such as PFAS can be cleaned up under the RCRA corrective action process. It will clarify that the RCRA Corrective Action Program has the authority to require investigation and cleanup of wastes that meet the RCRA Section 1004(5) definition of hazardous waste.
“EPA’s intention to list several PFAS chemicals as hazardous constituents allows all states to require cleanup of these toxic chemicals under their EPA-authorized hazardous waste programs,” says New Mexico Environment Department (NMED) Cabinet Secretary James Kenney. “It’s time for the Department of Defense (DoD) to respect state authority and comply with our rules as affirmed by the U.S. EPA.”
According to NMED, decades of DoD use of a PFAS-containing firefighting foam have contaminated groundwater at Cannon and Holloman Air Force bases. The state’s attempts to require DoD to clean up the contamination under an enforceable cleanup permit were met with a lawsuit challenging New Mexico’s authority to require the cleanup.
“We can only make progress for communities suffering from PFAS pollution if we work collaboratively across levels of government and harness our collective resources and authority,” notes EPA Administrator Michael Regan. “I thank Governor Lujan Grisham for her engagement and leadership, which will lead to better protections for people in New Mexico and across the country.”
For his part, Oklahoma Energy & Environment Secretary Ken Wagner urges in a September 28 letter to Regan on the New Mexico petition that EPA adopt a phased approach for regulating PFAS under RCRA, warning that a broad class-based system faces significant uncertainties and poses major liability risks. The letter supports listing of the firefighting foam at issue in New Mexico but suggests that due to numerous scientific uncertainties, it may be premature to list the entire class of PFAS compounds as hazardous under RCRA.