EPA To List Several PFAS Chemicals As Hazardous Constituents Under RCRA


At the urging of New Mexico Gov. Michelle Lujan Grisham through a first-of-its-kind petition, the U.S. Environmental Protection Agency (EPA) will move forward with a nationally significant rulemaking to change how per- and polyfluoroalkyl substances (PFAS) are managed and cleaned up under federal law. In a response letter sent to Gov. Lujan Grisham today, the EPA detailed its intention to list several PFAS chemicals as hazardous constituents under the federal hazardous waste law, the Resource Conservation and Recovery Act (RCRA).

The EPA will also propose a second rule to broadly clarify that states can require clean-up of any waste that meets the RCRA statutory definition of a hazardous waste.

“I applaud Administrator Regan for affirming my petition and empowering states to follow New Mexico’s lead in holding PFAS polluters accountable,” said Gov. Lujan Grisham. “But the fight is not over. New Mexico will continue to lead on the issue of PFAS contamination – because everyone deserves to live in a community free of environmental contamination.”

“We can only make progress for communities suffering from PFAS pollution if we work collaboratively across levels of government and harness our collective resources and authority,” said EPA Administrator Michael S. Regan. “Today, we are taking important steps toward developing new scientific approaches to confront these dangerous chemicals and strengthening the ability to clean up PFAS contamination. I thank Governor Lujan Grisham for her engagement and leadership, which will lead to better protections for people in New Mexico and across the country.”

“EPA’s intention to list several PFAS chemicals as hazardous constituents allows all states to require clean-up of these toxic chemicals under their EPA-authorized hazardous waste programs,” said New Mexico Environment Department Cabinet Secretary James Kenney. “It’s time for the Department of Defense to respect state authority and comply with our rules as affirmed by the U.S. EPA.”

Decades of use of a PFAS-containing firefighting foam used by the Department of Defense contaminated groundwater at Cannon and Holloman Air Force bases in New Mexico. The State’s attempts to require the Department of Defense to clean up the contamination under an enforceable clean-up permit were met with a lawsuit challenging New Mexico’s authority to require the Department of Defense to clean up its toxic PFAS pollution. The EPA’s partial grant of the Governor’s petition and clarification that all States can regulate PFAS as a hazardous waste further supports New Mexico’s position. Yet, the Department of Defense continues its litigation against New Mexico – costing New Mexicans millions of dollars in remediation contracts and legal fees and endangering public health.  

The New Mexico Environment Department will continue to support the U.S. EPA in the development of these rules, which will pave the way for greater cradle-to-grave regulation of PFAS. RCRA was signed into law in 1976 and provides a regulatory framework for managing hazardous waste. The Governor’s petition requested that the EPA Administrator either list all PFAS chemicals as hazardous wastes in RCRA – of which there are thousands – or, alternatively, individually list some of them as such.