March 20, 2023

Volume XIII, Number 79


March 17, 2023

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EPA and States Get Busy on PFAS Waste Regulation

The Biden administration has prioritized regulating Per- and Polyfluoroalkyl Substances (PFAS), which are a class of fluorinated chemicals used in products as varied as food packaging and fire-fighting foams because they are flame retardant, water repellent, and resist grease and oil. As such, the regulation of these substances is a matter of concern for manufacturers and industrial users throughout the supply chain. In addition to the Environmental Protection Agency’s (EPA) recently-released “PFAS Roadmap”, which sets out broad goals and timelines for federally regulating PFAS, EPA plans to initiate rulemakings to designate PFAS compounds as hazardous substances and refine its Interim Guidance on the Destruction and Disposal (Interim Guidance) of PFAS. States across the nation are taking regulatory action as well, pressuring EPA to create new federal rules. The recently enacted bipartisan Infrastructure Investment and Jobs Act earmarks US$10 billion for states to address PFAS contamination in drinking water and wastewater. As the process moves forward, the regulated community should take note of a few key recent developments in PFAS waste regulation.


On 23 June 2021, New Mexico Gov. Michelle Lujan Grisham petitioned EPA to begin the formal rulemaking process to designate the entire PFAS class of chemicals—which potentially implicates thousands of compounds—as hazardous substances under the Resource Conservation and Recovery Act (RCRA). She wrote that “without a uniform regulatory process addressing PFAS from manufacture to disposal, states like New Mexico will be left attempting to use a patchwork of statutory and regulatory authorities that may or may not provide enough oversight.”

EPA Administrator Michael S. Regan responded to Gov. Lujan Grisham by announcing the agency’s PFAS Roadmap the following week. The PFAS Roadmap did not originally contain a plan to designate PFAS as RCRA hazardous substances, but in a “partial grant of her petition,” EPA announced on 26 October 2021, that it would initiate two additional rules that will have broad repercussions:

  1. The first rule would list four PFAS compounds substances—perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorobutane sulfonic acid, and GenX—as hazardous substances under RCRA. If this rulemaking is successful, these four PFAS would be subject to RCRA’s regulations for treatment, storage, and disposal of hazardous substances, and PFAS users would be under strict reporting requirements.

  2. The second rule would clarify that RCRA’s Corrective Action Program has authority to require investigation and cleanup for wastes containing emerging contaminants, specifically including PFAS.

These new rules would impose new duties and reporting requirements for governments and private entities managing PFAS waste. No further information or comment period has yet been announced for these rules. In addition to these proposed RCRA rules, EPA recently submitted a plan to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), with a final rule coming by the summer of 2023.


A recent K&L Gates client alert highlighted the EPA’s “Interim Guidance on Destroying and Disposing of Certain PFAS and PFAS-Containing Materials” The Interim Guidance was an effort to address questions about how to dispose of PFAS given their persistence in the environment, and it identified three methods for potential disposal or destruction of these substances: landfill disposal, underground injection, and incineration. Instead of taking a position on these methods, EPA intended for the Interim Guidance to inform the decision-making process of those managing the destruction and disposal of PFAS. Further, because the science behind PFAS is still being developed, the Interim Guidance noted that some users should consider storing PFAS instead of disposing of them while these scientific advances are made.

The public comment period for the Interim Guidance ended on 22 February 2021, but the final guidance is now not expected until the Fall of 2023. EPA indicated it is updating the final guidance to reflect public comments received, as well as newly published research results. Recently proposed EPA rulemakings on PFAS disposal, as well as quickly shifting state regulations, will also likely impact the final guidance.


States have also begun regulating waste containing PFAS under state environmental laws. Many states have banned the use or manufacture of aqueous-film-forming-foam (AFFF), a powerful fire suppressant that contains PFAS. AFFF was a target of EPA’s Interim Guidance because it is a common source of PFAS-contaminated waste. Other states are taking actions that are even more specific on PFAS disposal.

  • Washington has banned the use of AFFF in training exercises, and is in the process of deciding on a disposal program for AFFF. The state has a goal of finalizing its disposal program in 2022.

  • In addition to similar bans on training exercises, New York has also banned the incineration of AFFF. The designation of PFAS as emerging contaminants also brings new monitoring and reporting requirements. Any releases of PFAS must be reported to the New York Department of Environmental Conservation’s Spill Hotline within two hours after discovery of the release. Under this broad mandate, firefighters using AFFF must report releases.

  • Pennsylvania recently finalized rules adding PFAS to its list of regulated substances under the Land Recycling and Environmental Remediation Standards Act, which encourages voluntary cleanup and reuse of contaminated commercial and industrial sites. This classification does not make PFAS “hazardous substances” under the state’s Hazardous Sites Cleanup Program until designated as such under the Hazardous Sites Cleanup Act or federal CERCLA.

Whether or not the new PFAS rules are promulgated under RCRA, the regulatory landscape for PFAS is rapidly shifting. The regulated community is encouraged to seek guidance to comply with new state mandates, in addition to new federal rules and guidance. 

Copyright 2023 K & L GatesNational Law Review, Volume XII, Number 24

About this Author


Samuel Boden is an associate at the firm’s Harrisburg office. He is a member of the Environment, Land, and Natural Resources practice group.

Janessa Glenn, KL Gates Law Firm, Environmental and Natural Resources Attorney

Janessa Glenn is counsel at the firm’s Austin office where she concentrates her practice on a variety of administrative law issues, environmental regulatory issues, and environmental litigation. Ms. Glenn practices both before state agencies, including contested case proceedings, and in state court related judicial review of agency decisions. Her current practice also includes a concentration on the management and conveyance of surface and groundwater rights, Superfund cost recovery and appellate practice before the Texas Courts of Appeal and the Texas Supreme Court.

Dawn Lamparello, KL Gates Law Firm, Environmental and Natural Resources Attorney

Dawn M. Lamparello concentrates her practice in environmental law, including related litigation and regulatory compliance work concerning various state and federal environmental laws, including CERCLA and RCRA. Ms. Lamparello also has transactional experience, including conducting due diligence and advising clients on environmental implications associated with corporate restructures and real estate transactions. Ms. Lamparello currently assists with the representation of seventy companies participating in the Lower Passaic River Study Area Cooperating Parties Group,...

Brian S. Montag Attorney KL Gates Environmental Law Newark

Brian Montag is a partner in the firm’s Newark office and practice group coordinator for the firm's global environment, land and natural resources practice group. He represents clients in regulatory, enforcement, and litigation matters in various industries and manufacturing sectors, including construction, quarry, asphalt, cement, telecommunications, glass, paper, and chemical operations. Brian has served as outside counsel to leading State and Federal trade and business associations. He also has extensive experience representing clients in administrative, State and...

Cliff L. Rothenstein, KL Gates Law Firm, Public Policy Attorney
Government Affairs Advisor

Cliff Rothenstein has more than 30 years of congressional and federal executive experience. Prior to joining K&L Gates, he served as Director of Legislative Affairs for the Federal Highway Administration (FHWA). In this capacity, Mr. Rothenstein worked on a daily basis with the FHWA Administrator, Deputy Administrator, and Deputy Secretary of the U.S. Department of Transportation (DOT). During Mr. Rothenstein’s tenure at FHWA, he led the development and advocacy efforts on legislation to reauthorize the nation’s surface transportation law where he played a...