On February 8, 2024, the U.S. Environmental Protection Agency (EPA) proposed two rules to expand the Agency’s authority to address releases of per- and polyfluoroalkyl substances (PFAS) and other emerging contaminants at permitted hazardous waste facilities under the Resource Conservation and Recovery Act (RCRA) corrective action requirements. These proposals, which are discussed separately below, were issued by EPA in response to rulemaking petitions submitted by the Governor of the State of New Mexico, the Public Employees for Environmental Responsibility, and the Environmental Law Clinic of the University of California, Berkeley.

Listing of Specific PFAS as Hazardous Constituents

The first proposed rule, Listing of Specific PFAS as Hazardous Constituents, would add nine PFAS (and their salts and structural isomers) to the list of “hazardous constituents” in 40 CFR part 261 Appendix VIII, commonly known as “Appendix VIII.” The nine PFAS are: PFOA, PFOS, PFBS, PFNA, PFHxS, PFDA, PFHxA, PFBA, and GenX.

Importantly, at this time, EPA is not proposing to list any PFAS as “hazardous wastes” subject to the full “cradle to grave” regulatory requirements for such wastes. A hazardous constituent listing would have more limited, but still significant, regulatory implications.

This is the only time EPA has proposed listing hazardous constituents in a standalone rulemaking and the first time EPA has proposed listing a hazardous constituent since 2005.

EPA stated that the primary purpose of the proposal is to bring PFAS into the RCRA corrective action program, which requires that the owner or operator of a facility with a permit for the treatment, storage, or disposal of hazardous waste initiate corrective action to protect human health and the environment for all releases of hazardous wastes or hazardous constituents. If finalized, the listed PFAS in Appendix VIII would be among the substances expressly identified for consideration in RCRA facility assessments and for further investigation and cleanup through RCRA corrective action processes. Substances can be listed as hazardous constituents “only if they have been shown in scientific studies to have toxic, carcinogenic, mutagenic or teratogenic effects on humans or other life forms.” 40 CFR 261.11(a)(3). In the proposal, EPA claims it cannot consider the costs of listing for regulated entities.

The proposal would also have implications outside the corrective action program. Among other things, EPA noted that the hazardous constituent listing could be a “first step” towards a hazardous waste listing for particular PFAS wastes, which as mentioned above, would trigger full RCRA hazardous waste regulations.

Amendments to Hazardous Waste Definition for RCRA Corrective Actions

In the second proposed rule, Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units, EPA proposed to amend regulatory definitions of hazardous waste to “clarify” that corrective action requirements apply to substances that meet the statutory definition of hazardous waste, not just wastes listed as hazardous wastes in the regulations or that exhibit a “characteristic” property of hazardous waste under the regulations. See 40 CFR § 260.10; 40 CFR § 261.3; 40 CFR § 270.2.  

According to EPA, the proposed revisions would “more clearly provide EPA authority to address, through corrective action for solid waste management units, releases of the full universe of substances that the statute intended – not only hazardous waste and hazardous constituents listed or identified in the regulations, but all substances that meet the definition of hazardous waste in RCRA section 1004(5) at a facility.” EPA contends that this rulemaking merely clarifies the Agency’s long-held position that statutory hazardous wastes can be subject to corrective action requirements.

To achieve EPA’s goals, the proposed rule would:

1. Amend the definition of hazardous waste in 40 CFR § 260.10 to expressly apply the RCRA section 1004(5) statutory definition of hazardous waste to corrective action requirements under § 264.101 and 40 CFR part 264 Subpart S.
2. Amend the identical definition in the hazardous waste facility permitting regulations § 270.2, to expressly apply the statutory definition of hazardous waste to the requirements relating to corrective action in § 270.14(d).

The statutory definition of hazardous waste covers “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.”

Under the proposal, EPA (and authorized states) could seek to require Treatment, Storage, and Disposal Facilities (TSDFs) to undertake corrective action not only for releases of characteristic and listed hazardous wastes (as well as releases of wastes with hazardous constituents in Appendix VIII, as discussed above), but also for releases of wastes covered by the broader statutory definition of hazardous waste. In this way, EPA could potentially address releases of PFAS chemicals in addition to the nine EPA intends to list as hazardous constituents in the parallel rulemaking—as well as other emerging contaminants of concern—without going through the process of listing them as hazardous constituents and without expanding the hazardous waste listings or characteristics.

In order to impose corrective action requirements on a “non-regulatory” substance that is not a characteristic or listed hazardous waste, or a hazardous constituent under Appendix VIII, under the proposed amendments, a permit writer for a RCRA TSDF would need to develop, and present for public comment, an administrative record supporting any conclusion that the substance meets the statutory hazardous waste definition.

The proposed rule also would add statutory corrective action authorities to 40 C.F.R. § 261.1(b)(2). Currently, Section 261.1(b)(2) provides that the Agency’s authority under RCRA sections 3007 (inspection authority), 3013 (administrative orders; monitoring, reporting), and 7003 (administrative orders; abate imminent and substantial endangerment) is not limited to solid waste and hazardous waste listed or identified in the regulations but extends to solid and hazardous wastes under the definitions in the statute. The proposed rule would add the Agency’s primary corrective action authorities in RCRA sections 3004(u) and (v) and 3008(h) in this section of the regulations to “clarify” that those corrective action requirements would also apply to substances meeting the statutory definitions. The proposed rule has the potential to greatly increase the universe of substances subject to corrective action under RCRA.

Broader Context of the EPA Proposals

Together, these proposals are another step in EPA’s PFAS Action Plan. These rules, in conjunction with the proposed designation of certain PFOA and PFOS as hazardous substances under CERCLA and the PFAS National Primary Drinking Water Regulation, represent a major expansion of authority for EPA and state environmental agencies to regulate PFAS and other emerging contaminants.

EPA is accepting public comment on the proposed rules. EPA comments for the Listing of Specific PFAS as Hazardous Constituents (EPA-HQ-OLEM-2023-0278) must be submitted by April 8, 2024, and by March 11, 2024 for Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units (EPA-HQ-OLEM-2023-0085).

For more information about EPA’s proposed rules relating to PFAS and other emerging contaminants under RCRA, please contact the authors.

Beveridge & Diamond's Waste and Recycling practice group assists clients in a wide range of industrial sectors with solid and hazardous waste regulatory issues under RCRA, its state counterparts, international treaties, and the laws and regulations of countries around the world. We regularly help clients in classifying their wastes as hazardous or non-hazardous, as well as in determining whether materials are wastes in the first instance and in assessing the potential applicability of regulatory exclusions or exemptions. We have been lead counsel in many cases challenging key portions of EPA’s definition of solid and hazardous wastes under RCRA, and defend companies in related enforcement actions. We have also been actively involved in corrective action issues at numerous hazardous waste facilities.