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Governor Lujan Grisham formally petitions EPA to list PFAS as hazardous waste under federal law

Jun 23, 2021

Credit Office of Gov. Michelle Lujan Grisham

  SANTA FE — Today, Governor Michelle Lujan Grisham petitioned the U.S. Environmental Protection Agency (EPA) to include per- and polyfluoroalkyl substances (PFAS) under the federal Resource Conservation and Recovery Act as a listed hazardous waste, which would set a clear regulatory path for New Mexico and dozens of other states grappling with PFAS contamination.

“In the absence of a federal framework, states continue to create a patchwork of regulatory standards for PFAS across the U.S. to address these hazardous chemicals. This leads to inequity in public health and environmental protections,” said Gov. Lujan Grisham. “This petition seeks swift EPA action to create a federal framework that will equally protect all communities across the U.S. by declaring PFAS what it is – a hazardous waste under federal law.”

New Mexico Environment Department (NMED) Cabinet Secretary James Kenney delivered the same message during testimony before the Senate Committee on the Environment and Public Works last week. The Governor’s petition was also shared with the full Committee and entered into the hearing docket.

“The federal government sued New Mexico to prevent having to clean up PFAS in 2019 and continues its litigation today, saddling New Mexicans with the cost of litigation and the cost of clean-up,” said Secretary Kenney. “This Department will not back down nor tacitly agree with the federal government in abandoning communities that need our help in protecting their health, environment, property values and economy. PFAS is a hazardous waste and must be federally regulated as such so states can protect communities.”

The state is currently working to address two plumes of PFAS groundwater contamination at Cannon and Holloman Air Force Bases caused by decades of the bases’ use of a PFAS-containing firefighting foam. NMED’s attempts to require the U.S. Department of Defense to clean up the contamination at Cannon Air Force were met with a lawsuit from the federal government challenging the state’s authority to do so. The lawsuit, initiated in 2019 under the last federal administration, continues today.

The Resource Conservation and Recovery Act (RCRA) was passed by Congress in 1976 and provides a regulatory framework for managing hazardous wastes. By clearly defining discarded PFAS as a listed hazardous waste, the EPA would set a clear path for states and the regulated community to responsibly manage PFAS. This would also allow states – not the Department of Defense – to manage PFAS clean-up under existing state programs authorized by the EPA. While the EPA received and has yet to act on two citizen petitions to list PFAS as hazardous waste, the EPA is required to act on a Governor’s petition within 90 days of receipt pursuant to RCRA. Therefore, the EPA must act on New Mexico’s petition on or before Sept. 21, 2021.

Known as “forever chemicals,” PFAS do not degrade in the environment and can contaminate groundwater. When ingested, PFAS can have adverse effects on human health, including decreased vaccine response in children, increased cholesterol levels, small birth weights and increased risk of kidney and testicular cancers. PFAS can also impact the reproductive cycles of animals, leading to a higher risk of endangerment and extinction.

The Governor’s petition can be found here. Further information on NMED’s response to PFAS can be found here.