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EPA Plans to Regulate PFAS with Cradle-to-Grave Regulation Under RCRA

PFAS, Newsletter Articles

November 3, 2021

In a letter sent to the Governor of New Mexico on October 26, 2021,[i] EPA Administrator Michael S. Regan announced that EPA will use the Resource Conservation and Recovery Act (“RCRA”) in a way that could radically reshape the regulatory landscape for per- and polyfluoroalkyl substances, known as “PFAS.”[ii]

First, EPA will propose adding several variants of PFAS as Hazardous Constituents under RCRA[iii]—a precursor to regulating PFAS as hazardous waste, bringing with it significant handling and disposal requirements for entities that use, treat, or dispose of PFAS. The proposal would also open the door to PFAS regulation under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), which could re-open CERCLA sites for PFAS remediation. Second, EPA will clarify that it can require parties to investigate and cleanup materials that meet the statutory definition of hazardous waste, bringing emerging contaminants—including PFAS—under its RCRA Corrective Action Program.[iv] That modification could provide EPA with the flexibility to require RCRA permitholders and others to investigate and clean up materials otherwise not yet listed as hazardous wastes under RCRA or CERCLA.

While brief, the import of the letter could be substantial, previewing significant developments in the regulation of PFAS across hundreds of contaminated sites nationwide.


The Administrator’s announcement originated in the deserts of the Southwest. New Mexico regulators found significant PFAS contamination in groundwater and surface waters near Cannon Air Force Base (“AFB”) outside Clovis, New Mexico, and Holloman AFB outside Alamogordo, New Mexico.[v] The U.S. Air Force has used PFAS-containing aqueous film-forming foam (“AFFF”) for decades in petroleum firefighting and training at its bases.

PFAS contamination has impacted New Mexico residents in several ways. The New Mexico Department of Health studied PFAS levels in Lake Holloman, near Holloman AFB. The agency identified levels of PFOA, one type of PFAS, as high as 5. 9 million parts per trillion in the Lake’s surface water.[vi] The current EPA PFOA health advisory for drinking water is 70 parts per trillion.[vii] New Mexico authorities argue that PFAS in Lake Holloman threatens tourism as well as migratory birds. A dairy farmer near Cannon Air Force Base learned that his water supply was contaminated with PFAS. His cow milk tested for high levels of PFAS and was pulled off market as a result.[viii]

New Mexico sued the United States and the Air Force in March 2019 to challenge the military’s ongoing use of AFFF at Cannon and Holloman Air Force Bases.[ix] The state included claims under its own hazardous waste cleanup law as well as RCRA.[x] New Mexico quickly sought a preliminary injunction to compel the Air Force to identify PFAS plumes through groundwater testing, provide blood testing for residents, expedite discovery on contamination, and provide alternative water sources for local residents.[xi] The government moved to dismiss the claims, arguing that New Mexico cannot bring a state law challenge when the Air Force had already completed its remedial investigations of those Air Force bases under CERCLA.[xii]

These filings set the stage for what could have been cutting-edge PFAS rulings. But the U.S. District Court for the District of New Mexico did not hear argument on those motions. Instead, the proceedings in New Mexico came to a standstill when the U.S. Judicial Panel on Multi-District Litigation (“MDL”) transferred the case, as a tag-along action under Panel Rule 7.1, to a pre-existing MDL in South Carolina consolidating all AFFF lawsuits in the country.[xiii]

The AFFF MDL includes over a thousand personal injury, product liability, tort, and other cases in which plaintiffs allege harm from AFFF.[xiv] After transfer, New Mexico sought leave from the transferee court judge, Richard M. Gergel in the District of South Carolina, to re-file its preliminary injunction motion—a move that would accelerate a potential ruling on the state’s arguments for immediate relief.[xv] Judge Gergel denied the motion for leave.[xvi] Considering the number of cases at issue in the MDL, and New Mexico’s late addition to that litigation, it could take a significant amount of time for a court to resolve the issues raised in the PFAS dispute between New Mexico and the Air Force.

It was in this context that New Mexico sought a new strategy to target PFAS contamination from the Air Force. And the state found that strategy already embedded in RCRA itself.

RCRA Petition Authority

RCRA provides several paths to list a material as a hazardous waste. One such path allows state governors to petition EPA to add a material to the list.[xvii] On June 23, 2021, New Mexico Governor Michelle Lujan Grisham became the first governor in the history of RCRA to use that petition process when she filed a petition to classify PFAS as a hazardous constituent.[xviii]

The petition process includes a 90-day response deadline.[xix] That deadline for New Mexico’s petition came and went on September 21, 2021, raising the specter of potential litigation to force EPA’s hand.[xx] EPA announced its Strategic Roadmap on how it plans to regulate PFAS on October 18, 2021,[xxi] and Administrator Regan provided at least a partial petition response six days later.

Administrator Regan’s Announcement

In his response to Governor Lujan Grisham’s petition, Administrator Regan indicated that EPA “intends to propose a partial petition grant.”[xxii] To that end, he committed to a pair of future rulemakings that could greatly change, expand, and intensify the way EPA and regulated entities manage PFAS.

  1. EPA Will Begin the Process to Regulate PFAS under RCRA

RCRA authorizes EPA to “regulate hazardous wastes from cradle to grave.”[xxiii] EPA has adopted rigorous rules governing how regulated entities must handle, store, monitor, treat, and ultimately dispose hazardous wastes to prevent potential releases into the environment.

EPA must undertake a two-step process to categorize PFAS-contaminated waste as hazardous waste subject to RCRA: (1) list PFAS as a Hazardous Constituent in 40 CFR part 261, Appendix VIII; and (2) publish a finding that PFAS-containing waste could pose a “substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.”[xxiv]

In his letter, Administrator Regan committed to take the first step. EPA will propose a rule adding certain PFAS family members including PFOA, PFOS, PFBS, and GenX to RCRA’s list of Hazardous Constituents.[xxv] The announcement does not provide a date by which EPA will take that first step in regulating PFAS. Once it does, the agency must then publish separate findings to regulate PFAS-containing waste as Hazardous Waste under RCRA.

The decision to regulate PFAS as Hazardous Waste under RCRA could also implicate past, present, and future CERCLA cleanups. Finalizing the rules described would automatically qualify PFAS as a Hazardous Substance under CERCLA.[xxvi] The cascading effects could be far-reaching. While also contingent on developing Maximum Contaminant Levels and other enforceable chemical limits, EPA could reopen closed Superfund sites or update current remedial actions to include mandatory requirements to investigate and remediate listed PFAS. As of January 2021, EPA had identified 233 private and federal facility National Priorities List (“NPL”) sites with confirmed PFAS groundwater detections.[xxvii] Of those, 47 exceeded the 2016 EPA Health Advisory Levels of 70 parts per trillion for PFOA and PFOS.[xxviii] With the new RCRA regulations, EPA could designate entirely new Superfund sites based on PFAS contamination alone. New parties who did not contribute to other forms of contamination, but did contribute to PFAS contamination, could also be drawn into existing Superfund disputes.

2. EPA Will Expand RCRA Corrective Action Authority to Cover Emerging Contaminants

RCRA also empowers EPA and state regulators to direct facilities that treat, store, or dispose of hazardous wastes to investigate and clean up hazardous releases.[xxix] EPA generally exercises this authority through RCRA permit conditions. Many of these investigations and cleanups rival Superfund sites in risk.[xxx]

Administrator Regan committed to undertake a rulemaking process that would “clarify in our own regulations that the RCRA Corrective Action Program has the authority to require investigation and cleanup” of hazardous waste.[xxxi] Since its inception, EPA has operated the “Corrective Action Program” through several guidance documents. A final agency rule would formalize EPA’s statutory authority to direct investigations and cleanups. Administrator Regan also detailed that the rule would “clarify that emerging contaminants such as PFAS can be addressed through RCRA corrective action.”[xxxii]

The proposed rulemaking could allow regulators to force RCRA permitholders to investigate or clean up emerging contaminants where EPA believes the contaminant meets the statutory definition of “hazardous waste” under RCRA but has not yet been listed as Hazardous Constituents. It would also allow federal or state regulators to re-open closed Corrective Action sites—including non-RCRA permitted interim status sites subject to Corrective Action—to conduct PFAS investigation and remediation.

This expansive approach to emerging contaminants is similar to that taken by courts that apply the statutory definition of “solid waste” to substances not within the regulatory definition. For example, in Connecticut Coastal Fishermen’s Ass’n v. Remington Arms Co.,[xxxiii] the Second Circuit found that “lead shot and clay targets in Long Island Sound” were solid waste under the statutory definition.[xxxiv] By contrast, the Corrective Action Program has generally required a specific regulatory designation of a substance. The potential change would give EPA significant flexibility and discretion in requiring corrective action for PFAS and other emerging contaminants.

Authority over emerging contaminants would be particularly potent with PFAS, a large and ever-expanding family of synthetic fluorinated organic chemicals. In May 2018, the Organisation for Economic Co-Operation and Development identified 4,730 PFAS that may have been used on the global market since the late 1940s.[xxxv] Other scientific research institutes postulate that the family could include up to 10,000 varieties, many yet to be identified.[xxxvi]

Next Steps for EPA

For the time being, Administrator Regan’s letter represents only a promise to act at an unidentified point in the future. For the potentially sweeping changes described above to occur, EPA must still propose the rules, allow for notice and comment, conduct economic analysis, adopt them in final form, and, presumably, fend off resulting legal challenges. EPA’s rulemaking process will include many opportunities for interested parties to contribute comments, highlight scientific findings, and challenge or support the details of these critical regulations.

For more information on PFAS, please contact Jessica Ferrell, Jeff Kray, or James Pollack.

The authors wish to thank Brad Marten and Lawson Fite for their contributions to this article.

[i] Letter from EPA Administrator Michael Regan to New Mexico Governor Michelle Lujan Grisham (Oct. 26, 2021) (citing 40 C.F.R. 261, Appendix VIII), [“Regan Letter”]

[ii] PFAS are a family of artificial, highly mobile, and persistent chemicals that do not break down in the environment. There is no universally accepted definition, but all PFAS contain a carbon-fluorine bond. They are broken down into polymer and non-polymer classes, all containing either a “fully (per) or partly (poly) fluorinated carbon chain connected to different functional groups. Based on the length of the fluorinated carbon chain, short and long chain PFASs can be distinguished.” Interstate Technology and Regulatory Council (ITRC), PFAS Fact Sheets (Aug. 2020-Aug. 2021), Current studies link PFAS exposure to a wide array of health problems, including thyroid hormone disruption, increased obesity, cancer, and negative effects on the reproductive system. EPA, Our Current Understanding of the Human Health and Environmental Risks of PFAS (Oct. 18, 2021),

[iii] Regan Letter, supra note i.

[iv] Id.

[v] Testimony of New Mexico Secretary of the Environment James C. Kenney to the U.S. Senate Committee on Environment and Public Works, Regarding a hearing on “PFAS: The View from Affected Citizens and States” (June 9, 2021),

[vi] Letter from New Mexico Governor Michelle Lujan Grisham to EPA Administrator Michael Regan (June 23, 2021) [“New Mexico Petition”],

[vii] Lifetime Health Advisories and Health Effects Support Documents for Perfluorooctanoic Acid and Perfluorooctane Sulfonate, EPA, 81 Fed. Reg. 33250, 33250 (May 25, 2016),

[viii] See New Mexico Petition, supra note vi.

[ix] State of New Mexico et al. v. United States et al., No. 1:19-cv-00178-MV-JFR (D.N.M. filed January 17, 2019).

[x] State of New Mexico’s First Amended Complaint (Doc. 9), State of New Mexico et al. v. United States et al., No. 1:19-cv-00178-MV-JFR (July 24, 2019).

[xi] State of New Mexico’s Motion for Preliminary Injunction (Docs. 10, 11), State of New Mexico et al. v. United States et al., No. 1:19-cv-00178-MV-JFR (July 24, 2019).

[xii] United States’ Opposition to Plaintiffs’ Motion for Preliminary Injunction and Cross-Motion to Dismiss (Docs. 31-1, 33), State of New Mexico et al. v. United States et al., No. 1:19-cv-00178-MV-JFR (Sept. 7, 2019).

[xiii] See JPML Transfer Order (Doc. 650), In Re: Aqueous Film-Forming Foams Products Liability Litigation, MDL No. 2873 (June 2, 2020),

[xiv] In re Aqueous Film-Forming Foams Prod. Liab. Litig., 357 F. Supp. 3d 1391 (J.P.M.L. 2018).

[xv] In re Aqueous Film-Forming Foams Prod. Liab. Litig., No. 2:18-mn-2873-RMG, ECF No. 801 at 1 (D.S.C. Sept. 3, 2020).

[xvi] See id. at 2 (“Allowing New Mexico, and each of the thousands of Plaintiffs in this MDL, to conduct motion practice outside the auspices of Lead Counsel would derail a centralized proceeding . . . and impede each plaintiff’s opportunity to participate in an organized proceeding and efficient resolution.”),

[xvii] 42 U.S.C. § 6921(c).

[xviii] See New Mexico Petition, supra note vi, at 1.

[xix] 42 U.S.C. § 6921(c).

[xx] See id. § 6972(a)(2) (authorizing RCRA citizen suits against EPA for failure to comply with a non-discretionary duty).

[xxi] White House, Fact Sheet: Biden-Harris Administration Launches Plan to Combat PFAS Pollution (Oct. 18, 2021), See also Marten Law, EPA Announces Roadmap for PFAS Regulation with Nationwide Implications (Oct. 20, 2021),

[xxii] See Regan Letter, supra note i. The State of Washington recently reached a similar conclusion with respect to existing authority in the context of its own dangerous waste regulations and state Superfund Act (MTCA), announcing last month that those laws already encompass PFAS and therefore enable state regulation thereof. See Marten Law, Washington State to Regulate PFAS Under State Superfund (Oct. 28, 2021),

[xxiii] City of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 331–32 (1994).

[xxiv] See 40 C.F.R. § 261.11(a)(3).

[xxv] See id. § 261, Appendix VIII.

[xxvi] See id. § 302.4.

[xxvii] EPA, Addressing PFOA and PFOS in the Environment: Potential Future Regulation Pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act and the Resource Conservation and Recovery Act at 5 (Jan. 14, 2021),

[xxviii] Id.

[xxix] Hazardous and Solid Waste Amendments of 1984 (HSWA) (P.L. 98-616, 98 Stat. 3221).

[xxx] Learn about Corrective Action, EPA,

[xxxi] See Regan Letter, supra note i.

[xxxii] See id. at 2.

[xxxiii] 989 F.2d 1305 (2d Cir. 1993).

[xxxiv] Id. at 1316.

[xxxv] Organisation for Economic Co-operation and Development (“OECD”), Environment Directorate Joint Meeting Of The Chemicals Committee And The Working Party On Chemicals, Pesticides And Biotechnology, Toward A New Comprehensive Global Database Of Per- and Polyfluoroalkyl Substances (Pfas): Summary Report On Updating The OECD 2007 List Of Pfas, Series on Risk Management No. 39 at 6 (May 4, 2018), The 2018 OECD list builds on the organization’s 2007 list identifying over 950 Chemical Abstract Service Registry Numbers (“CAS”) and the subsequent investigation by the Swedish Chemicals Agency (“KEMI”) identifying PFAS and other highly fluorinated substances with over 2000 CAS numbers. KEMI “indicated that many more PFASs may be present on the global market with unknown CAS numbers.” Id. at 9.

[xxxvi] ITRC, PFAS Fact Sheets (Aug. 2020—Aug. 2021),


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