I have seen many client alerts on the two RCRA rules proposed by EPA on February 8. I agree with commentators that note that if EPA adds 9 PFAS chemicals to the RCRA Appendix VIII list of hazardous constituents it will be much easier for EPA to later list wastes containing those constituents as hazardous wastes. I also agree that if EPA’s rules are changed to apply the statutory definition of hazardous waste to corrective action, then states (or EPA) will have the authority to decide what is a hazardous waste on a case-by-case basis, when issuing corrective action permits, rather than going through of notice and comment rulemaking.

However, to me the most interesting aspect of these proposed rules is the discussion in the Corrective Action Definition rulemaking of the case against New Mexico filed by the United States on January 17, 2019. That litigation challenges the RCRA corrective action permit issued by New Mexico (which is authorized to implement the RCRA program) for Cannon Air Force Base because that permit requires the Air Force to address PFAS contamination of groundwater. Like EPA, New Mexico had not listed any PFAS as hazardous wastes. In the permit, the state relied on its statutory definition of hazardous waste (which is the same as the federal definition) to define the scope of corrective action at Cannon.

For decades Cannon has had releases of PFOA and PFOS due to the use of aqueous film-forming foam (AFFF) for firefighting training. Those releases polluted groundwater. In 2018 nearby dairy farmers discovered that use of this contaminated groundwater for their animals had adulterated the milk of several thousand cows, which had to be euthanized.

The Department of Defense (DoD) has stated its intent to first “fully investigate” PFAS releases at 715 installations, then “prioritize responses,” and finally “determine appropriate responses,” using its authority under CERCLA. Under CERCLA, DoD gets to make the cleanup decisions at DoD facilities. To date, DoD has primarily focused on site assessments and site investigations, not cleanup. DoD has only recently agreed to take interim cleanup actions to address PFAS.

In the litigation against New Mexico the United States takes the position that the state cannot not use the statutory definition of hazardous waste to define the scope of corrective action. While that case was dismissed by the federal district court for the District of New Mexico on August 18, 2022, on jurisdictional grounds, the United States appealed that ruling to the 10th Circuit and that appeal is still pending.

Fast forward to February 8, 2024. We now have EPA taking a position that is opposite to the one advanced by the Department of Justice on behalf of the Air Force, i.e., that the statutory definition of hazardous waste controls the scope of corrective action. Further, EPA claims that this is its “longstanding” interpretation, pointing to language in a proposed rule that was never finalized and later withdrawn. Clearly the Air Force and the Department of Justice did not have notice of EPA’s “longstanding” interpretation.

So much for our unitary executive.

Whatever you think of the merits of EPA’s proposal, it is a good thing that the agency is going through the notice and comment rulemaking to implement the agency’s preferred interpretation of RCRA.

Had DoD stepped up to the plate to address its PFAS contamination more proactively, it is likely that these two RCRA rules would never have been proposed.