While I was on vacation last week, EPA proposed to identify as “hazardous constituents” nine of the “forever chemicals" known collectively as PFAS. EPA's proposal will now be subject to public comment before perhaps being finalized later this year. If all goes according to plan, at some point in the future those responsible for “corrective action” under the Federal Resource Conservation and Recovery Act, or RCRA, because of the presence of “hazardous waste” at a property will also be required to address the presence of any of these nine PFAS at that property.
According to EPA this will require more work at approximately 1700 RCRA sites around the country. But there are undoubtedly thousands of other properties not covered by RCRA that won't be affected by this particular action.
If all of this seems familiar to you it may be because it was over two years ago, in October of 2021, that EPA Administrator Regan, responding to a petition from the Governor of New Mexico, said that EPA would do what it did last week respecting four of the nine PFAS it is now proposing to list.
At the time I cautioned that it was going to take longer than EPA anticipated to reach the many destinations on its PFAS road map but even I thought it would be farther along than it is. The Inside EPA article linked to my blog about EPA's PFAS road map announcement includes the optimistic deadlines EPA set for itself back then.
In the meantime, Federal and State courts have continued to be busy adjudicating PFAS-related claims that have pushed some defendants into bankruptcy with others certain to follow. In fact, just last week, South Carolina Federal District Court Judge Gergel, who is responsible for managing the hundreds of Aqueous Film-Forming Foam (AFFF) related cases that have been filed around the country, expressed concern about a potential bankruptcy filing by 3M which has proposed a $12.5 billion settlement with the nation's water suppliers relating to PFAS contamination. Judge Gergel seems to be leaning toward approving that settlement over the objection of several water supplies that would be covered by it.
And many, but not nearly most, State Regulators and fewer State Legislatures have continued to step into the PFAS void.
How far EPA will get in its PFAS journey by the end of the Biden Administration remains to be seen. But now that we're in the last year of the first term of this Administration it is worth asking this question. If PFAS are the "urgent public health and environmental issue" that EPA says that they are, how long can we wait before we determine what we're going to do about PFAS and how we're going to do it and pay for it?
"EPA evaluated toxicity and epidemiology data for these chemicals and determined that these nine PFAS compounds meet the criteria for listing as a RCRA hazardous constituent," it says. 1,740 Facilities Under that rule, EPA identified 1,740 facilities that could be subject to additional corrective action cleanup requirements to address releases of the nine PFAS. The types of facilities most likely to be affected include chemical manufacturing facilities, waste management and remediation services, and national security facilities, the hazardous constituents rule says.