Advocacy

EPA Releases PFAS Roadmap & Begins Rulemaking, Senate Holds Hearing on Federal Response

On October 18, 2021, the U.S. Environmental Protection Agency (EPA) released a “Strategic Roadmap” to address growing concerns associated with PFAS. The multi-faceted approach is intended to address both human health and environmental impacts across numerous Agency offices, including the Office of Land and Emergency Management (OLEM). Although solid waste facilities do not generate PFAS, the Roadmap may have substantial implications for landfills and other solid waste disposal facilities, including compost facilities, that receive PFAS materials.

One of the most significant components of the Roadmap for the solid waste industry is the intended designation of PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). EPA intends to propose such a regulation in Spring 2022 and finalize it by Summer 2023. This could potentially make landfills and other solid waste disposal facilities liable under the Superfund program for remediation costs. This could make waste disposal in the United States more expensive as landfills incur new costs to treat leachate and face potential liability.

The Roadmap lays out various regulatory and other activities through 2024, affecting a plethora of industries, and the anticipated impact on solid waste management could be significant. Although landfills and other waste disposal are not producers of PFAS and are merely passive receivers that store solid waste that contains PFAS, the Roadmap identifies landfills as sources that “directly discharge PFAS into water or soil or generate air emissions in large quantities.” This is likely to increase regulatory scrutiny for landfills and other solid waste facilities. For example, the Roadmap states it will finalize a risk assessment for PFOA and PFOS in biosolids by Winter 2024 and use the results to determine whether regulations of PFOA or PFOS in biosolids is appropriate.

The Roadmap considers landfills to be an “industrial” category of PFAS generators and focuses on restricting discharges of PFAS. EPA intends to issue new Effluent Limitations Guidelines (ELG’s) with anticipated completion by 2024. The Roadmap also intends to leverage NPDES permitting to reduce PFAS discharges into waterways and launch research on facilities where EPA has preliminary data on PFAS discharges. These studies will be completed by Fall 2022. The agency will initiate data reviews for industrial categories where the phaseout of PFAS is projected. This includes pulp, paper, and paperboard.

The U.S. Senate Committee on Environment and Public Works (EPW) held a hearing on the federal response to PFAS on October 20, two days after EPA released its Strategic Roadmap. EPA Assistant Administrator Rashika Fox testified. Several Senators complained that the timeline for addressing PFAS through the regulatory processes identified in the Roadmap was too long, and many of them expressed a need to address PFAS contamination more promptly. A possible exemption for the aviation industry was raised by one Senator, but EPA was non-committal about such an exemption.

On October 26, EPA announced it is acting upon a petition from Governor Michelle Lujan Grisham of New Mexico to tackle PFAS contamination under the Resource Conservation and Recovery Act (RCRA). The Governor requested that PFAS be identified as hazardous waste under RCRA, either as a class or as individual chemicals.

In response, EPA will be initiating two rulemakings. First, the agency will start the process to propose adding four PFAS chemicals as RCRA Hazardous Constituents under Appendix VIII, by evaluating the existing data for these chemicals and establishing a record to support such a proposed rule. The four chemicals are: perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorobutane sulfonic acid (PFBS), and GenX. Adding these chemicals as RCRA Hazardous Constituents would ensure they are subject to corrective action requirements and would be a necessary building block for future work to regulate PFAS as a listed hazardous waste.

The second rulemaking effort will clarify in regulations that the RCRA Corrective Action Program has the authority to require investigation and cleanup for wastes that meet the statutory definition of hazardous waste, as defined under RCRA section 1004(5). This modification would clarify that emerging contaminants such as PFAS can be cleaned up through the RCRA corrective action process.

Based on EPA’s Strategic Roadmap, its response to New Mexico, and continuing interest on Capitol Hill, PFAS is likely to continue to be a high-profile issue for the next few years. Despite being passive receivers of waste material that contain PFAS, landfills are being included among the categories of sources that will be targeted. This will almost certainly create challenges for both solid waste agencies and companies. SWANA will remain actively engaged on this important issue and has already notified the Core Advocacy Group of these developments. 

How EPR Came To Maine and Oregon

Maine and Oregon have made history by being the first two states in the U.S. to require extended producer responsibility (EPR) for packaging. But these laws took different paths towards passage and have important differences as a result. By understanding the advocacy efforts that went on behind the scenes, the private and public sector solid waste industry can ensure that EPR systems in other states are built to truly advance the responsible management of solid waste as a resource.

Shelby Wright of Casella Waste Systems and Andrea Fogue of the Oregon Refuse and Recycling Association (ORRA) are advocacy experts who will outline the way these bills went from idea to reality in the SWANA Webinar, How EPR Came to Maine and Oregon, on November 23. This is an informative and timely presentation as other states consider EPR in their coming legislative sessions.