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.”