Read the full article by Daniella Einik, Kevin Holewinski, Françoise Labrousse, Donald McGahn II, & Jones Day (JDSupra)

“On January 15, 2020, several environmental groups filed a petition asking the Environmental Protection Agency (‘EPA’) to regulate certain per- and polyfluoroalkyl substances (‘PFAS’) under the Resource Conservation and Recovery Act (‘RCRA’). PFAS are synthetic, environmentally persistent chemicals with a wide variety of commercial and industrial applications, including firefighting foams, greaseproof food wrapping, nonstick cookware, water-repellent fabrics, carpets, and textiles.

The petition, filed on behalf of the groups by the Environmental Law Clinic at UC Berkeley, asks the EPA to promulgate regulations designating wastes containing three classes of PFAS—PFOA (perfluorooctanoic acid), PFOS (perfluorooctane sulfonic acid), and GenX chemicals (hexafluoropropylene oxide dimer acid and its ammonium salt)—as hazardous wastes subject to the management and disposal requirements of Subtitle C of RCRA.

The EPA has already taken some action to address certain PFAS substances. For example, the agency has issued health advisories for PFOA and PFOS under the Safe Drinking Water Act. These advisories are nonbinding and are designed to help local officials better evaluate risks from contaminated drinking water. Additionally, the EPA has promulgated Significant New Use Rules (“SNURs”) for PFAS under the Toxic Substances Control Act. But these rules are mainly preventative regulations that target future manufacturing and importation of PFAS. They do not directly regulate ongoing environmental releases or mitigate contamination that has already occurred.

Designating PFAS as a hazardous waste would have major consequences for entities that produce, transport, or utilize these substances in their products. RCRA gives the EPA the authority to control hazardous waste from ‘cradle-to-grave.’ A hazardous waste designation would allow the EPA to go beyond the preventative measures it has in place and directly regulate the generation, transportation, treatment, storage, and disposal of PFAS. The EPA or an authorized state authority could then subject violators to heavy civil, and in some cases criminal, penalties…”