On October 18, 2021, EPA issued its, "PFAS Strategic Roadmap: EPA's Commitments to Action 2021-2024." This roadmap sets out EPA's action plan for minimizing the release of PFAS into the environment. In the Roadmap, EPA emphasizes the need to "get upstream of the problem" and to "hold polluters accountable." In the field of hazardous waste, there is a well-established mechanism for minimizing the uncontrolled release of contaminants into the environment, specifically, RCRA's "cradle-to-grave" tracking system. Under this system, generators of solid waste must determine whether their waste is hazardous. If so, they must fill out a hazardous waste manifest, which tracks waste from the point of generation to a treatment or disposal facility permitted to safely manage the material. Further, once a new waste enters RCRA's hazardous waste program, it becomes subject to the land disposal restriction program and EPA must set treatment standards for newly listed wastes within 6 months. 42 U.S.C. § 6924(g).
By identifying wastes as hazardous before they leave the point of generation, RCRA helps avoid the creation of future Superfund sites because RCRA hazardous wastes must be treated and then disposed of in facilities specifically designed to manage these materials. From an environmental perspective, this approach is far superior to tackling the problem in the opposite direction after the "horse has already left the barn." Establishing management controls at the point of generation of a hazardous waste avoids the technical conundrums - and expense - of a toxic waste clean-up. The word "RCRA," however, appears in the Roadmap in only one location: as part of EPA's plan to use RCRA and other environmental statutes "to identify past and ongoing releases into the environment." (p. 20). The Roadmap ignores RCRA's potential as a tool to keep PFAS out of the environment in the first place.
A few months before EPA issued its Roadmap, however, New Mexico governor Michelle Lujan Grisham filed a rulemaking petition asking EPA to list PFAS as a hazardous waste under RCRA, or alternatively to list individual PFAS as "chemicals known to have harmful effects or harm the environment." (The New Mexico petition incorporated extensive earlier rulemaking petitions filed by the Environmental Law Clinic at the University of Berkeley and the Public Employers for Environmental Responsibility). In response to the New Mexico petition , EPA Administrator Michael Regan expressed EPA's intention to list four PFAS chemicals-not as hazardous wastes but as hazardous constituents under Appendix VIII of RCRA. This contemplated action "would help advance any longer-term process to make a hazardous waste listing determination in the future." In addition, EPA indicated that it would initiate a rulemaking to make it clear that RCRA's Corrective Action authorities extend to emerging contaminants such as PFAS, provided they meet the statutory (as opposed to the regulatory) definition of hazardous waste.EPA formally announced its plan to initiate this rulemaking on October 26, 2021. According to a meeting summary issued by the Office of Information and Regulatory Affairs ("OIRA") under Executive Order 12866, EPA stated its intention to issue a notice of proposed rulemaking to "list specific PFAS as RCRA hazardous constituents subject to corrective action requirements at hazardous waste treatment, storage, and disposal facilities (TSDFs)" in August 2023.
Listing a substance as a hazardous constituent, however, is only the first step to listing it as a hazardous waste. Once a substance is listed as a hazardous constituent, EPA must then consider a number of enumerated factors and determine whether the waste "is capable of posing a substantial present or potential threat to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed." 261.11(a)(3). Presumably, EPA is now undergoing this evaluation.
Another possible route is for EPA to designate PFAS as a toxic characteristic for hazardous waste. Under 40 CFR 261.10, EPA has the authority to add to characteristics of toxic hazardous wastes set out in 40 CFR § 261.24 - in this case, the toxicity of PFAS-upon determining that the characteristic meets certain conditions. These conditions include that a solid waste exhibiting that characteristic may "(i) Cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (ii) Pose a substantial present or potential hazard to human health or the environment when it is improperly treated, stored, transported, disposed of or otherwise managed."
Making PFAS a hazardous characteristic would cast a much wider net than listing specific PFAS-containing waste streams. Any waste containing PFAS above a designated concentration would become a hazardous waste, regardless of the specific source.
While EPA appears to be taking a deliberate, methodical approach to listing PFAS as a hazardous waste, it has moved faster to propose two rulemakings to list certain PFAS chemicals as hazardous substances under Superfund. In a September 6, 2022 Federal Register notice, EPA proposed listing PFOA and PFOS as hazardous substances. On April 13, 2023, it issued an Advanced Notice of Proposed Rulemaking to add seven additional PFAS chemicals to the list of hazardous substances.
Under CERCLA, a hazardous substance is a material that contains a listed hazardous chemical in any concentration. The extremely broad definition of a CERCLA hazardous substance was intended to give EPA wide-ranging authority to compel the clean-up of abandoned waste sites and round up the largest possible number of potentially responsible parties to pay for the clean-up. But just because a waste contains a CERCLA hazardous substance does not make it a RCRA hazardous waste, and generators of hazardous substances are not required to fill out a manifest. Thus, although making PFAS hazardous substances will give EPA the authority to compel remediation at a new group of PFAS-contaminated sites, it will do little to stem the initial flow of PFAS into environment. The takeaway, therefore, is that EPA is currently focusing on the remediation of PFAS contamination after it has already occurred, not on actions to protect the environment from PFAS in the first place.
Furthermore, CERCLA, which was designed to clean up abandoned waste sites, may not be the best tool to effectuate the efficient clean-up of PFAS. More than any of the contaminants that led Congress to enact CERCLA over 40 years ago, PFAS are ubiquitous in the environment and found in products that Americans use on a daily basis. Applying CERCLA to PFAS-with its overly broad liability scheme, lack of concentration-based standards, and outdated mantra that the "polluter must pay" -is bound to produce substantial litigation and inequitable results. This state of affairs does not do much to solve the PFAS remediation problem and does nothing to advance the goal of going upstream to correct problems before they occur.
Listing PFAS as a hazardous waste will not itself fix the PFAS problem, in part because of the household hazardous waste exclusion, which would allow many PFAS containing products to continue to be thrown out with regular garbage, even if they are "hazardous" wastes. It would, however, go a long way toward preventing the release of PFAS-containing wastes from industrial sources and impose the cost of properly managing these materials upon those who generate the largest volumes.
If the listing of PFAS as a hazardous waste under the current regulatory scheme becomes too cumbersome for EPA to accomplish in the reasonable future, then the solution must be for Congress to step in and pass legislation requiring the proper handling and disposal of PFAS waste. Congress certainly has its own obstacles to acting on this issue. All efforts at anything more than modest PFAS legislation over the last several years have been unsuccessful. But Congress nevertheless has the ability craft a solution that is tailored to the unique environmental challenges posed by PFAS-containing products and waste streams. Whether through rulemaking or lawmaking, refocusing regulation upstream is the better approach to minimizing the release of PFAS into the environment.
Footnotes
1. There are two categories of hazardous wastes - so-called "listed" wastes and "characteristic" wastes. Listed wastes, enumerated at 40 CFR §§ 261.30-.33, are those waste streams that EPA has already determine pose a hazard if mismanaged. Characteristic wastes, found at 40 CFR §§ 261.20-.24, are wastes that exhibit one of four hazardous characteristics: ignitability, corrosivity, reactivity, or toxicity.
2. 40 C.F.R. § 261.4(b)(1). Whether household hazardous waste programs will ever be established to manage PFAS wastes is an open question.
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