EPA proposes regulating ‘forever chemicals’ under hazardous waste law

The U.S. Environmental Protection Agency (EPA) sign is seen on the podium at EPA headquarters in Washington, U.S., July 11, 2018. REUTERS/Ting Shen

  • Rule would list four PFAS compounds as hazardous waste under Resource Conservation and Recovery Act
  • Listing could spur litigation involving plants and manufacturers

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(Reuters) – The Environmental Protection Agency on Tuesday announced it is preparing a rule that would list some so-called “forever chemicals” as hazardous substances that must be eliminated from industrial waste before it is discarded.

Under the plan, four compounds that are part of the wider family of polyfluoroalkyl and perfluoroalkyl substances, or PFAS, could be added to the Resource Conservation and Recovery Act’s (RCRA) list of “hazardous constituents” to “ensure they are subject to corrective action requirements.”

The chemicals are perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorobutane sulfonic acid (PFBS) and GenX.

The new regulation, if adopted, would particularly affect the operations of water treatment facilities, wastewater plants and landfills, said Kenneth Sansone, a partner at SL Environmental Law Group.

PFAS tend to accumulate in these facilities, which would need to install filtration systems and other devices in order to avoid risks of non-compliance with the RCRA’s prohibition against dumping untreated hazardous waste, the lawyer added.

Tuesday’s move is likely to spur strict liability claims under the RCRA against handlers of PFAS products and operators of PFAS contaminated sites, as well as claims against PFAS manufacturers, he added.

Samuel Boxerman, a partner at law firm Sidley Austin, said “expanded EPA enforcement” could “provide data that a private plaintiff may seek to use to support a citizen suit.”

A second potential rule announced on Tuesday would clarify, in EPA regulations, that the RCRA can require the investigation and clean up of hazardous waste.

PFAS have been used for decades in household products such as non-stick cookware, stain- and water-resistant textiles and in industrial products. But scientists have associated some PFAS with illnesses such as kidney cancer.

They have been dubbed “forever chemicals” because they don’t break down easily. High-temperature incineration is one technology emerging as capable of destroying them.

EPA’s announcement came in response to New Mexico Governor Michelle Lujan Grisham petitioning the EPA in June to request the listing of PFAS as hazardous waste under the RCRA, the agency said.

Lujan Grisham said in a statement that the move would help states “hold PFAS polluters accountable.”

Last week, the EPA released a three-year roadmap to limit environmental contamination involving PFAS.

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Reporting by Sebastien Malo @sebastienmalo

Sebastien Malo

Sebastien Malo reports on environmental, climate and energy litigation. Reach him at sebastien.malo@thomsonreuters.com

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