On January 31, 2024, EPA published a press release announcing the impending publication of two proposed rules relating to PFAS and the Resource Conservation and Recovery Act (RCRA): (1) “Definition of Hazardous Waste Applicable to Corrective Action from Solid Waste Management Units” and (2) “Listing of Specific PFAS as Hazardous Constituents.”  

Definition of Hazardous Waste Applicable to Corrective Action from Solid Waste Management Units

Regarding the first proposed rule, EPA intends to revise the scope of the definition of Hazardous Waste under RCRA by broadening the definition to include emerging contaminants of concern, like PFAS. This would allow EPA and authorized states to expressly require cleanup of these constituents. While EPA has not published a proposed rule as of the date of this post, EPA anticipates a 30-day public comment period from the date of publication. 

The prepublication version of this rule includes the following significant changes:

  • Revise the definition of hazardous waste to cover releases not only of substances listed or identified as hazardous waste in the regulations but of any substance that meets the statutory definition of hazardous waste, including providing notice of EPA’s interpretation that this applies to permitted and interim status facilities.
  • Include a conforming definitional amendment to the requirements for permitting solid waste management units under Section 270.14(d).
  • Add RCRA sections 3004(u) and (v) and 3008(h) to the statutory authorities identified in Section 261.1(b)(2), which provides the statutory definitions of solid and hazardous waste govern the scope of EPA’s authority under certain sections of RCRA.

EPA further notes that the rule would be applicable in all states on the effective date, however, some states may require updating their regulatory programs and obtaining EPA approval prior to administering the changes. 

Listing of Specific PFAS as Hazardous Constituents

Regarding the second proposed rule, EPA intends to identify multiple PFAS compounds as hazardous constituents included in facility assessments and for potential investigation and corrective action processes at hazardous waste treatment, storage, and disposal facilities. EPA anticipates a 60-day public comment period. 

The prepublication version of this rule includes the following significant changes:

  • Add to the definition of hazardous constituents nine PFAS substances, including their salts and structural isomers: (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).

EPA identified over 1,700 facilities that could be required to take additional corrective action to address PFAS constituents under RCRA. EPA further indicated it would continue evaluating whether to add PFAS substances, including these nine, to the definition of hazardous waste. EPA stated that it expected to use the findings of this rulemaking in any future rulemaking regarding regulation of these PFAS (e.g., hazardous waste designation). As part of this effort, EPA summarized and discussed certain data that it relied on to evaluate toxicity and health assessments for the nine PFAS substances. Additionally, like its companion rule, this rule would be applicable in all states on the effective date and states would need to update their programs prior to enforcing the new rules. 

Conclusion The pending proposed rules represent a continued push by EPA to regulate PFAS compounds, striving to meet the goals outlined in its PFAS Strategic Roadmap announced on October 18, 2021 setting forth proposed actions EPA planned to take through 2024. Clearly, EPA is anticipating increased activity involving remediation of PFAS under RCRA in the next few years. Additionally, EPA plans to utilize these rules, and other PFAS-related rulemakings, to further regulate PFAS. Reed Smith is actively tracking PFAS developments with the EPA and across all markets.