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.

Moreover, a hazardous waste designation under RCRA would automatically list PFOA, PFOS, and GenX chemicals as "hazardous substances" under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), the federal statute governing cleanup of contaminated sites. Such a designation would allow the EPA to order cleanup of sites contaminated with PFAS and sue those potentially responsible for that contamination It also would allow private parties to seek cost recovery in their own right at PFAS sites to the extent they have incurred cleanup costs remediating those sites.

Key Takeaways

• The regulation of PFAS under RCRA could have wide ranging impacts on entities that produce, transport, or utilize PFAS in their products.
• The designation of PFAS as a RCRA hazardous waste would also trigger CERCLA liability that could open entities up to strict liability for historic releases associated in some way with their operations or products.