September 14, 2021

New Mexico Petitions for PFAS Regulation Under RCRA

On June 23, 2021, the state of New Mexico submitted a petition to EPA requesting the regulation of per- and polyfluoroalkyl substances (PFAS) as RCRA hazardous waste. The petition indicates the regulation of PFAS could occur via multiple mechanisms. Once the class of PFAS chemicals is added to the list of hazardous constituents in Part 261 Appendix VIII, it could then be regulated under the toxicity characteristic of §261.24 or as a listed hazardous waste. New Mexico supports the petition by citing the numerous environmental and economic risks of PFAS and two previously submitted petitions for regulating PFAS as hazardous waste.

In September 2019, the non-profit Public Employees for Environmental Responsibility petitioned EPA for the RCRA regulation of PFAS. The following year, the Environmental Law Clinic at University of California, Berkeley submitted a petition for the RCRA regulation of certain “long-chain” PFAS. Both of these petitions contain significant amounts of scientific research cited in the New Mexico petition. In addition to the human health and environmental concerns, New Mexico’s petition also makes a strong economic argument—the state claims to have incurred financial losses in the millions in the agricultural, tourism, and recreation industries due to PFAS contamination.

Beyond the environmental and economic arguments, other reasons for the RCRA-regulation of PFAS are cited in the state’s petition:

“Listing of PFAS under RCRA is absolutely necessary to provide EPA and states the framework to regulate PFAS from the cradle to the grave. Without a uniform regulatory process addressing PFAS from manufacture to disposal, states like New Mexico will be left attempting to use a patchwork of statutory and regulatory authorities that may or may not provide enough oversight to protect workers, consumers, users, and disposers of PFAS from the known harms associated with exposure.”

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Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.