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New Mexico on the (PFAS) national stage

By - Miori
02/08/2022 12:44 PM

New Mexico petitioned the EPA to list two PFAS chemicals as hazardous

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On June 23, 2021 Governor Michelle Lujan Grisham of New Mexico petitioned the EPA to list PFAS chemicals as hazardous wastes under Subtitle C of the Resource Conservation and Recovery Act (RCRA). Per- and poly- fluoroalkyl substances (PFAS) have been used since the mid-1900's for an array of industrial and commercial uses. They do not degrade naturally and can now be found almost anywhere in our environment, at least in trace amounts. 

In response to this first-of-its-kind letter, on October 26, 2021, EPA made moves towards listing not just two but four PFAS chemicals as hazardous. EPA has initiated the rulemaking process to add PFOA, PFOS, PFBS, and GenX to the RCRA Hazardous Constituents list under 40 CFR Part 261 Appendix VIII. 

The significance of this is that RCRA Hazardous Constituents are subject to corrective action requirements at treatment, storage, and disposal facilities, so operators will soon be liable for managing these constituents with a high level of monitoring and remediation that goes beyond a simple SWPPP (Stormwater Pollution Prevention Plan required as part of the 2021 MSGP). Operators will be responsible for testing, which most facilities do not do currently and lack the technical knowledge required to perform testing. An additional hurdle is that labs that analyze PFAS are not available in every state.

Part of what instigated this action is that when the New Mexico Environmental Department called out the Department of Defense for contaminating groundwater at Cannon and Holloman Air Force bases, they were met with a lawsuit challenging New Mexico's authority on the issue. If EPA continues to support New Mexico's position on the issue, and this action signals that it will, it will be a step forward for the funding of environmental remediation efforts. 

However, the problem with this designation is that if you test for PFAS you will most likely find it, and the implications for every operator in the country is severe because it will not stop at "polluters" but will include any business that can detect PFAS anywhere on their property and hold them liable.  Most midsize to small industrial operators are not ready for this challenge.

On January 10, 2022, the 90-day clock started for the White House Office of Management and Budget (OBM) to oppose EPA's plan for a PFAS Superfund designation of PFOS and PFOA (two types of PFAS constituents).  It is unlikely that OBM will oppose it, and it will go to the public for comment following the 90-day period (March 11, 2022). By 2023, unless there is significant public outcry, PFOS and PFOA are likely to gain "hazardous substance" designation under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, Superfund).

For reference, RCRA manages hazardous waste at facilities that are currently operating, while CERCLA manages the remediation of abandoned or non-operating sites with hazardous contamination. Because PFAS constituents are both in use (e.g. grease-proof food packaging) and banned (e.g. class B firefighting foam), either RCRA or CERCLA could be applicable depending on the facility, operator, and nature of the contamination.

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