State Power Over PFAS Waste Cleanups Unclear as US Weighs Rules

States face uncertainty about their authority under a federal waste law to order PFAS waste cleanups, especially as those orders apply to federal agencies, but pending regulations and an ongoing court case could clarify questions.

The Environmental Protection Agency has used a federal waste law, the Resource Conservation and Recovery Act (RCRA), to order investigations or other actions addressing perfluoroalkyl or polyfluoroalkyl substances (PFAS) at least as far back as 2004.

But it’s not as clear whether states—even when they’re authorized to implement RCRA—can order facilities to clean up PFAS wastes using that law’s definition of hazardous wastes.

The debate is playing out in a first-of-its kind lawsuit, in which the Department of the Air Force is suing New Mexico to fight the state’s cleanup order. The definitional question that case raises would gain clarity if two RCRA rules the EPA has proposed are finalized.

If the EPA finalizes one of the rules as proposed, it would give states clear authority and likely spur them to require more sites to be investigated to decide if cleanups are warranted, said Thomas Lee, a Bryan Cave Leighton Paisner LLP partner who leads the firm’s PFAS team.

The rule, proposed on Feb. 8, would codify the broader of two hazardous waste definitions RCRA provides.

If finalized, the rule would authorize the EPA and states to order cleanups of PFAS and other hazardous chemicals even if the compounds don’t meet the statute’s narrower definition of wastes that are listed in RCRA regulations and ones with certain characteristics, such as being corrosive, flammable, or toxic.

The broader definition covers wastes that “cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness,” or “pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.”

‘Brought to its Head’

The question over the scope of wastes covered under RCRA has been around for some time, Lee said. “But PFAS brought it to its head.”

The Air Force in a brief filed on Monday opposing New Mexico’s RCRA permit continued to argue the law’s narrower definition of wastes, which the EPA has codified through regulations, didn’t allow the state to order corrective actions against PFAS and other contaminants.

That core argument, which the Air Force has made since 2019, prompted the EPA “to take a fresh look at its regulations,” the agency said in its proposed definitional rule. The broader definition “would better align the regulation with the statutory requirement,” the EPA said.

The EPA also proposed on Feb. 8 a second RCRA rule that would list nine PFAS as “hazardous constituents.” That’s the first step toward the agency deciding whether one or more of the PFAS are regulated hazardous wastes subject to RCRA.

The agency hasn’t sent final versions of either rule to the White House, which must review them and decide whether they can be released.

Most states are waiting for the EPA to issue its final rules before ordering RCRA cleanups, Lee said.

And some states or state agencies, such as Utah’s Division of Waste Management and Radiation Control, have questions about the financial and other burdens the rules could impose on them.

But New Mexico and North Carolina told the EPA last month that they interpret the hazardous waste statute as already covering PFAS making those chemicals “subject to regulation under RCRA.”

‘Court to Decide’

Some attorneys agree with those states’ interpretation.

States that are authorized to implement RCRA can go beyond the statute’s minimum requirements, so they could regulate PFAS through that law, said Jeffrey Dintzer, an environmental law specialist and partner working in Alston & Bird LLP’s Los Angeles office.

But federal agencies typically would balk if ordered by a state to clean up PFAS based on a RCRA order, he said. They’d likely call the EPA to ensure they or it retains authority to manage the action on federal property, he said.

Yet, in addition to New Mexico, at least one other state has issued a RCRA permit ordering a federal agency to take action to control PFAS.

Investigations the Air Force has taken to address PFAS at its former Reese Air Force Base, near Lubbock, Texas, include ones conducted under a RCRA permit issued by the Texas Commission on Environment, according to multiple Air Force documents including one updated in January.

But generally, state RCRA orders to federal agencies to clean up PFAS, which aren’t specifically listed as solid or hazardous waste under law’s implementing regulations, could be challenged, said Matthew Snell, a Nutter McClennen & Fish LLP partner specializing in permitting and other land use issues.

“This, however, would likely require a court to decide,” he said.