EPA responds to New Mexico Governor and acts to address PFAS under Hazardous Waste Law

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The U.S. Environmental Protection Agency on Tuesday announced it was acting upon a petition from Governor Michelle Lujan Grisham of New Mexico to tackle contamination by PFAS or “forever” chemicals under the Resource Conservation and Recovery Act.

In responding to the petition, EPA outlined plans to initiate the rulemaking process for two new actions under the hazardous waste law, reflecting the agency’s focus on using best available science and leveraging authorities to combat this shared challenge.

“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,” said EPA Administrator Michael S. Regan. “Today, we are taking important steps toward developing new scientific approaches to confront these dangerous chemicals and strengthening the ability to clean up PFAS contamination.”

“I applaud Administrator Regan for empowering states to follow New Mexico’s lead and hold PFAS polluters accountable,” said Governor Lujan Grisham. “By taking an urgent and science-based approach to this issue, we’re helping to protect communities in New Mexico and around the country.”

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Governor Lujan Grisham’s petition requested that PFAS be identified as hazardous waste under RCRA, either as a class or as individual chemicals. Some of the sites where “forever” chemical contamination were discovered at military air bases in New Mexico where firefighters used foam in extinguishing fires.

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In its response, EPA announced the initiation of two rulemakings. First, the agency will initiate the process to propose adding four PFAS chemicals as RCRA Hazardous Constituents under Appendix VIII, by evaluating the existing data for these chemicals and establishing a record to support such a proposed rule. The four PFAS chemicals EPA will evaluate are: perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorobutane sulfonic acid (PFBS), and GenX. Adding these chemicals as RCRA Hazardous Constituents would ensure they are subject to corrective action requirements and would be a necessary building block for future work to regulate PFAS as a listed hazardous waste.

The second rulemaking effort will clarify in our regulations that the RCRA Corrective Action Program has the authority to require investigation and cleanup for wastes that meet the statutory definition of hazardous waste, as defined under RCRA section 1004(5). This modification would clarify that emerging contaminants such as PFAS can be cleaned up through the RCRA corrective action process.

Source: EPA

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