On January 31, 2024, the Environmental Protection Agency ("EPA") proposed two new rules that would add nine per- and polyfluoroalkyl compounds (known as "PFAS") to its list of hazardous constituents regulated under the Resource Conservation and Recovery Act ("RCRA"). More than 1,700 facilities that treat, store, or dispose of hazardous wastes could be required to clean up PFAS under the proposed rules, which are part of the agency's PFAS Strategic Roadmap, aiming to create a robust federal regulatory framework to address pollution caused by the so-called "forever chemicals."

PFAS are a class of manufactured chemicals that have been widely used in many industrial and consumer products since the 1940s. PFAS have been or are currently being manufactured for a variety of different uses, such as adhesives, coatings for clothes and furniture, fire-fighting foam, cookware, cosmetics, and food packaging, to cite only a few. Toxicologists have been raising alarms that the compounds are very toxic to animals and humans and – because they do not biodegrade easily and accumulate in the environment – they are now found in the blood of nearly all Americans and in most water sources (more on PFAS and testing here).

Proposed RCRA Rules

The first proposed rule would add nine PFAS, their salts, and their structural isomers to the list of "hazardous constituents" in 40 CFR part 261 Appendix VIII expressly identified for consideration in RCRA facility assessments and investigations and, where necessary, cleanup through the corrective action process, although it's not clear yet what those cleanup levels will be.

• The proposed rule lists the following PFAS (names given in acid forms), their salts, and structural isomers:
  • Perfluorooctanoic acid,
  • Perfluorooctanesulfonic acid,
  • Perfluorobutanesulfonic acid,
  • Hexafluoropropylene oxide-dimer acid,
  • Perfluorononanoic acid,
  • Perfluorohexanesulfonic acid,
  • Perfluorodecanoic acid,
  • Perfluorohexanoic acid, and
  • Perfluorobutanoic acid
• Entities potentially affected include hazardous waste treatment, storage, and disposal facilities ("TSDFs") with solid waste management units ("SWMUs") that have released or could release any of the proposed PFAS "hazardous constituents."
• As part of its proposed rule, EPA has identified 1,740 facilities that could be subject to additional corrective action requirements to address releases. These 1740 facilities include facilities, organized by NAICS, that contain a potentially higher likelihood of handling PFAS, and where corrective action for PFAS may occur, including but not limited to: Petroleum and Coal Products Manufacturing; Chemical Manufacturing; Fabricated Metal Product Manufacturing; Computer and Electronic Product Manufacturing; Merchant Wholesalers; Nondurable Goods; and Waste Management and Remediation Services.
  • The list in the proposed rule is based on industries that have historically been, or currently are, associated with PFAS (and TSDFs in these industries are therefore assumed to have a higher likelihood of handling PFAS), as well as any TSDFs that have reported any of the specific PFAS proposed to be listed by this rule.
• EPA also hinted that it may regulate PFAS as hazardous waste in the near future, which would significantly expand companies subject to RCRA regulations as "generators" and require those companies to comply with the complex system of manifests, annual reports, and labeling. Further, while this rule is an important first step towards regulating PFAS, EPA will need to provide additional clarity regarding the regulation and cleanup levels for these constituents.

The second proposed rule amends the regulations applicable to TSDFs in two significant ways:

• First, EPA is proposing to amend the definition of "hazardous waste"[1] in the context of corrective action requirements applicable to investigating and addressing releases at TSDFs[2] by expressly applying the broader RCRA statutory definition of "hazardous waste"[3] to such requirements. EPA's stated intent for this proposed change is to "more clearly provide EPA authority to address, through corrective action for solid waste management units...all substances that meet" the broader statutory definition of "hazardous waste." By doing so, RCRA-permitted facilities may be required to perform corrective actions to address releases of more than just the substances listed or identified as hazardous under RCRA regulations, allowing the agency more flexibility in addressing emerging chemicals of concern. The precise scope of corrective action for PFAS may require further agency guidance.
• Second, EPA's proposed rule would expand EPA's authority under specific statutory sections of RCRA to substances meeting the broader statutory definition of "hazardous waste."[4] This proposed expansion includes the statutory sections that provide for corrective action requirements at RCRA-permitted facilities and facilities authorized to operate under interim status, and provides notice that EPA interprets its authority to include addressing releases from SWMUs of all substances that meet the broader statutory definition of "hazardous waste."

Taken together, these rules could require TSDFs to investigate and respond to many more than just the nine PFAS and constituents listed in the first proposed rule so long as EPA is able to meet the broader statutory definition of "hazardous waste" under RCRA and signals the agency's intent to continue strengthening regulatory requirements related to PFAS. In parallel, EPA is expected to finalize in March 2024 a CERCLA rule that would add at least two PFAS compounds as hazardous substances under the law, and this RCRA rulemaking could suggest that additional compounds will also be subject to the CERCLA remediation statutory scheme.

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