On October 26, 2021, the U.S. EPA announced it will initiate two rulemakings that will take significant steps to address PFAS contamination across the country. The first rulemaking will designate four of the so-called “forever chemicals” as hazardous wastes under RCRA. The four PFAS that will be the subject of this rulemaking are perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorobutane sulfonic acid (PFBS), and hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt – more commonly known as GenX. This announcement came the day after EPA released its latest toxicity assessment of GenX. EPA found that GenX is the most toxic of these four PFAS and the agency has committed to reviewing the 2016 toxicity assessments for PFOA and PFOS.
The second rulemaking will clarify EPA’s authority under RCRA to require investigation and cleanup for wastes that meet RCRA’s definition of hazardous waste. EPA’s goal is to make clear that emerging contaminants, such as PFAS, can be cleaned up through the RCRA corrective action process. Regulating PFAS, and other emerging contaminants under RCRA, will have broad implications. For starters, RCRA hazardous wastes are automatically listed as hazardous substances under CERCLA. Active Superfund sites will likely be required to address PFAS contamination, which could result in new potentially responsible parties being identified. However, it is not yet known how EPA will address closed sites where PFAS may be present.
While these rulemakings were announced in response to a petition from the Governor of New Mexico, they build upon EPA’s broader action plan to address PFAS contamination across the country. As we have previously discussed, EPA released a PFAS Strategic Roadmap laying out a comprehensive approach to PFAS contamination through 2024. Meanwhile, many stakeholders are awaiting better guidance from EPA on PFAS disposal and destruction, which according to EPA’s Roadmap may not come out for another year.