United States: EPA's Proposed Rules For Regulating PFAS Under The Resource Conservation And Recovery Act

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On February 8, 2024, the Environmental Protection Agency ("EPA") proposed two rules that would: (1) amend the regulatory definition of hazardous waste applicable to RCRA corrective actions to address releases from solid waste management units at treatment, storage, and disposal facilities ("TSD facilities"), and (2) add nine per- and polyfluoroalkyl substances ("PFAS"), their salts, and their structural isomers to the hazardous constituents list of RCRA. These proposed rules, if adopted, would provide EPA with a heightened authority to regulate PFAS.

Definition of Hazardous Waste Applicable to Corrective Action for Releases From Solid Waste Management Units (89 Fed. Reg. 8598)

EPA's first proposed rule would broaden the regulatory definition of hazardous waste applicable to RCRA corrective actions at TSD facilities. The proposed revision would clarify EPA's authority to address, through corrective action for solid waste management units, releases of all substances at a TSD facility that meet the statutory definition of hazardous waste in RCRA § 1004(5), not merely hazardous wastes and hazardous constituents listed or identified in the regulations. That is, the broadened regulatory definition of hazardous waste would include a solid waste, or combination of solid wastes, which because of certain characteristics, may "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." EPA noted that this proposed rule would not directly address PFAS, but "it would facilitate the use of RCRA corrective action authority to address emerging contaminants such as PFAS, as well as other non-regulatory hazardous waste," at RCRA-permitted TSD facilities.

Listing of Specific PFAS as Hazardous Constituents (89 Fed. Reg. 8606)

EPA's second proposed rule would expand the list of hazardous constituents in 40 C.F.R. Part 261 Appendix VIII to include perfluorooctanoic acid ("PFOA"), perfluorooctanesulfonic acid ("PFOS"), perfluorobutanesulfonic acid ("PFBS"), hexafluoropropylene oxide-dimer acid ("HFPO–DA" or "GenX"), perfluorononanoic acid ("PFNA"), perfluorohexanesulfonic acid ("PFHxS"), perfluorodecanoic acid ("PFDA"), perfluorohexanoic acid ("PFHxA"), and perfluorobutanoic acid ("PFBA"), along with their salts and structural isomers. The listing of these PFAS as hazardous constituents would not render them RCRA-listed hazardous wastes, although it is a basis for any future action EPA may take to list them as hazardous wastes. The listing of these PFAS as hazardous constituents would, however, include them as expressly identified for consideration in RCRA facility assessments, and where necessary, require further investigation and cleanup through the RCRA corrective action process. Notably, RCRA-listed hazardous constituents are not hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). However, in April 2023, in a separate advanced notice of proposed rulemaking, EPA has proposed listing certain PFAS as hazardous substances under CERCLA. Such a designation could result in responsible parties under CERCLA being retroactively liable for cleanup of these PFAS.

Together, these proposed rules would expand corrective action obligations at existing sites and increase the number of corrective action sites in the future. In fact, EPA identified 1,740 TSD facilities with solid waste management units that have released or could release any of the PFAS proposed to be listed as RCRA hazardous constituents. Comments on the rule broadening the regulatory definition of hazardous waste were due March 26, 2024. Comments on the rule listing the specific PFAS as hazardous constituents were due April 8, 2024.