EPA Proposes Two PFAS-Related Rules Under RCRA. More May Be on the Way.
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EPA Proposes Two PFAS-Related Rules Under RCRA. More May Be on the Way.

Brownstein Client Alert, Feb. 23, 2023

On Feb. 8, 2024, the U.S. Environmental Protection Agency (“EPA”) released two proposed rules addressing per- and polyfluoroalkyl substances (“PFAS”) under the Resource Conservation and Recovery Act (“RCRA”). One proposed rule lists nine PFAS as hazardous constituents under RCRA. The other proposed rule changes the regulatory definition of “hazardous waste” for the purposes of RCRA’s Corrective Action Program.

PFAS substances have become ubiquitous in industrial and consumer products—including adhesives, food packaging, firefighting foam and coatings of cookware, furniture and clothing—for their ability to repel grease, water and oil. Certain PFAS have been phased out of production in the United States but remain in production elsewhere in the world.

If finalized, the new rules would apply to permitted operators of hazardous waste treatment, storage and disposal facilities (“TSDFs”) with solid waste management units that are required by their permits to take corrective action for releases of hazardous waste and constituents. While other sections of RCRA reference “hazardous constituents,” EPA expects only negligible impacts because of existing processes and procedures. However, other entities that generate, transport or store PFAS may be required to address PFAS as RCRA hazardous waste under future EPA rules. 

How EPA’s Rulemaking Process Began

In 2021, the governor of New Mexico petitioned for full RCRA hazardous waste listing of PFAS under RCRA Subpart C.1 This petition triggered the two subject rulemakings at EPA (though not to the extent requested in the petition). EPA now proposes two rules. First, EPA proposes to add nine PFAS compounds to RCRA’s list of hazardous constituents (“Listing of Specific PFAS as Hazardous Constituents), which would allow EPA to address releases of these PFAS from TSDFs. Second, EPA proposes to amend the definition of hazardous waste as it applies to corrective actions (cleanups) at TSDFs (“Definition of Hazardous Waste Applicable to Corrective Action for Releases From Solid Waste Management Units”), which would clarify that EPA has authority to order cleanup of emerging chemicals of concern, including PFAS, at certain permitted facilities. Both proposals are discussed in greater detail below.

For now, EPA has proposed a more limited regulatory regime, but the agency’s move likely signals a willingness to expand RCRA’s reach over PFAS, potentially leading to big changes in the future.

Listing of Specific PFAS as Hazardous Constituents

The first of the proposed rules would list nine PFAS, their salts and their structural isomers as “hazardous constituents” under 40 C.F.R. Part 261 Appendix VIII. Prior to this proposed rule, RCRA did not list any PFAS as hazardous constituents. The proposed PFAS hazardous constituents are:

  • perfluorooctanoic acid (“PFOA”)
  • perflurooctane sulfonic acid (“PFOS”)
  • perflourobutane sulfonic acid (“PFBS”)
  • hexafluoropropylene oxide dimer acid (“HFPO-DA” or “GenX”)
  • perfluorononanoic acid (“PFNA”)
  • perfluorohexanesulfonic acid (“PFHxS”)
  • perfluorodecanoic acid (“PFDA”)
  • perfluorohexanoic acid (“PFHxA”)
  • perfluorobutanoic acid (“PFBA”)

Many of these PFAS compounds are relatively well studied and familiar subjects of recent regulatory actions. The proposed rule summarizes the toxicity and adverse health effects supporting the listings on Appendix VIII but cautions that “[i]nterpreting epidemiology data for PFAS and determining the individual toxicological responses of each PFAS individually (or their interaction effects) is an ongoing challenge because multiple PFAS have been shown to induce similar adverse health effects (e.g., immune, developmental, hepatic, cardiovascular effects, cancer).”

The main impacts of these listings are on the RCRA Corrective Action Program. Adding these PFAS as hazardous constituents impacts approximately 1,740 TSDFs with solid waste management units. Under RCRA, TSDF permits issued after Nov. 8, 1984, require corrective action (i.e., cleanup) for all releases of hazardous waste or hazardous constituents from solid waste management units at TSDFs. If the proposed rule is finalized, EPA may identify PFAS during RCRA facility assessments and require TSDFs to clean up PFAS through the RCRA corrective action and closure requirements.

Importantly, EPA’s proposed action also signals a step toward classifying PFAS as “hazardous waste.” To list a waste as hazardous under 40 C.F.R. Section 261.11(a)(3), EPA must show that the waste contains a hazardous constituent listed in Appendix VIII (which would be accomplished by this rulemaking) and determine, based on 11 regulatory factors, that it is “capable of posing a substantial present or potential threat to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed.” 40 C.F.R. Section 261.11(a)(3). As detailed in a prior Brownstein client alert, this development is consistent with EPA’s broader efforts to impose regulatory oversight of PFAS. A future classification of any PFAS as hazardous waste may subject entities that produce or handle PFAS to RCRA’s full cradle-to-grave hazardous waste management and tracking provisions.

The proposed rule can be accessed here. Comments must be received by April 8, 2024.

Definition of Hazardous Waste Applicable to Corrective Action for Releases From Solid Waste Management Units

The second proposed rule would broaden the definition of “hazardous waste” applicable to RCRA corrective action. The proposed rule codifies EPA’s interpretation that RCRA provides it authority to address and take corrective action for releases of any substances that meet the broad statutory definition of “hazardous waste.” Under RCRA’s Corrective Action Program, EPA and authorized states manage investigations and cleanups of hazardous waste and hazardous constituents at TSDFs. Typically, sites are brought into RCRA’s Corrective Action Program after there is an identified release of a hazardous waste or hazardous constituent, or if the regulatory agency is considering a TSDF permit application.

Presently, the Corrective Action Program regulations rely on the regulatory definition of “hazardous waste” that includes only wastes listed by regulation or those that exhibit one of the four regulatory hazardous waste characteristics (ignitability, corrosivity reactivity and toxicity). However, RCRA’s statutory definition of “hazardous waste” is much broader:

a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may—

(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or

(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.

42 U.S.C. Section 6903(5).

Although EPA’s proposal does not directly address PFAS, it further bolsters EPA’s authority to address emerging contaminants like PFAS and other non-regulatory hazardous waste at TSDFs, despite not being listed or exhibiting hazardous waste characteristics.

The proposed rule can be found here. Comments to this proposed rule are due March 11, 2024.

Brownstein has experience advising clients in a wide range of industries on compliance obligations under RCRA. For more information, please contact the Brownstein Natural Resources team.

1 Previously, other petitions requesting EPA take regulatory actions on PFAS under RCRA were submitted by Public Employees for Environmental Responsibility in 2019, and the Environmental Law Clinic of University of California, Berkeley in 2020 (on behalf of community and environmental advocacy groups from California, Alaska, North Carolina, Pennsylvania, Michigan, and Colorado).

This document is intended to provide you with general information regarding two proposed rules from the EPA address PFAS under the Resource Conservation and Recovery Act. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.

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