EPA Seeks to Regulate Nine PFAS as Hazardous Constituents

On February 8, 2024, the U.S. Environmental Protection Agency (U.S. EPA) published two proposed rules in the Federal Register that, if adopted, would list nine per- and polyfluoroalkyl substances (PFAS) as “hazardous constituents” under the Resource Conservation and Recovery Act (RCRA) and expand the agency’s ability to address these PFAS in RCRA corrective actions. These rules originate from a petition submitted by the Governor of New Mexico in 2021 asking the U.S. EPA to regulate PFAS and from the U.S. EPA’s commitment to address PFAS under RCRA in the U.S. EPA Strategic PFAS Roadmap issued in 2021.

PFAS Listing Proposal

The first proposal seeks to add nine PFAS, their salts, and their structural isomers to the U.S. EPA’s list of hazardous constituents in 40 C.F.R. Part 261 Appendix VIII.[1] Placement on this list serves as one of the criteria for determining whether a solid waste is a hazardous waste. Thus, while the proposed rule does not list the nine specific PFAS as “hazardous wastes” under RCRA, their listing paves the way for the U.S. EPA to potentially identify these nine PFAS as listed hazardous wastes under RCRA in the future. While “hazardous constituents” are not “hazardous wastes” under RCRA, there are specific provisions in the existing regulations that require owners or operators of solid waste management units to address releases of hazardous constituents to the uppermost aquifer at a RCRA corrective action site.

If adopted, this rule will expand the U.S. EPA’s ability to require PFAS cleanups at sites that are subject to RCRA jurisdiction. The proposal would require the U.S. EPA and state agencies to consider these PFAS in implementing corrective action requirements at treatment, storage, and disposal facilities under RCRA. The U.S. EPA’s corrective action program under RCRA authorizes the U.S. EPA or an authorized state agency to require such facilities to clean up releases of hazardous wastes or hazardous constituents. 42 U.S.C. § 6924(u)-(v).

Clarifications for Corrective Actions

The U.S. EPA’s second proposed rule would alter the definition of “hazardous waste” as it applies to corrective actions for solid waste management units at treatment, storage, and disposal facilities. According to the U.S. EPA, this proposed rule would harmonize the regulations with the statutory definition of “hazardous waste” at 42 U.S.C. § 6903(5). The definition of “hazardous waste” would include all listed hazardous wastes, hazardous constituents, and any other hazardous wastes which, under the regulations, “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.” If adopted, this rule would allow the U.S. EPA or states that implement the proposed rule to impose additional, and potentially costly, requirements to investigate and clean up the nine proposed PFAS as well as emerging contaminants in a corrective action context. These additional requirements could also expand upon the existing provisions related to addressing hazardous constituents in the uppermost aquifer of a RCRA corrective site.

Conclusions and Next Steps

Collectively, these proposed rules would expand the cleanup obligations at existing sites managed under RCRA corrective action orders and provide the U.S. EPA authority to issue new corrective action orders to address these nine PFAS or any emerging contaminants. Comments on the U.S. EPA’s proposal listing the nine PFAS as hazardous constituents must be received on or before April 8, 2024. Comments on the proposal addressing clarifications for RCRA corrective actions must be received on or before March 11, 2024. For additional information on the proposed rules or for assistance with commenting on the proposed rule, contact Foley & Lardner LLP.

[1] The nine specific PFAS proposed for listing are: (1) perfluorooctanoic acid (“PFOA”), (2) perfluorooctanesulfonic acid (“PFOS”), (3) perfluorobutanesulfonic acid (“PFBS”), (4) hexafluoropropylene oxide-dimer acid (“HFPO-DA” or “GenX”), (5) perfluorononanoic acid (“PFNA”), (6) perfluorohexanesulfonic acid (“PFHxS”), (7) perfluorodecanoic acid (“PFDA”), (8) perfluorohexanoic acid (“PFHxA”), and (9) perfluorobutanoic acid (“PFBA”).