The EPA missed the September 21, 2021 deadline to respond to a Petition filed by the State of New Mexico to designate all per- and polyfluoroalkyl substances (PFAS) as hazardous waste under RCRA. The EPA had 90 days to respond to the state’s petition, and failure to respond has now opened the door to litigation. Regulation under RCRA would have subjected PFAS substances to the “cradle to grave” regulation under the federal waste law. RCRA listing would have subjected the chemicals to broad, cradle to grave waste management, including strict storage, transfer, and disposal requirements. In addition, such listing would also have lead to an automatic designation of those chemicals as hazardous substances under the Superfund law, which would have triggered EPA’s authority to compel cleanup of contaminated sites and to recoup the cost from responsible parties. Even if the EPA had decided to proceed with the listing of PFAS, the rule-making process would have been controversial, and likely could have taken years.
