General Publications February 29, 2024

“Proposed RCRA Regs For PFAS: What Cos. Must Know,” Law360, February 29, 2024.

Extracted from Law360

On Feb. 8, the U.S. Environmental Protection Agency proposed two new rules to add nine per- and polyfluoroalkyl substances, or PFAS, to the Resource Conservation and Recovery Act's list of hazardous constituents, and expand the definition of "hazardous waste" under the RCRA's Corrective Action Program.

The PFAS Hazardous Constituent Rule would add the nine PFAS compounds and their salts and structural isomers to the RCRA list of hazardous constituents.

The Hazardous Waste Corrective Action Rule would modify the definition of hazardous waste, and clarify that hazardous constituents are subject to corrective action.

Together, the proposed rules would expand the number of chemicals subject to consideration by regulated industries undergoing RCRA corrective action, and give RCRA corrective action authority to address emerging contaminants such as PFAS — thus paving the way for future efforts to regulate PFAS as RCRA-listed hazardous wastes.


PFAS are manufactured chemicals that are widely used, and break down slowly over time. Many PFAS are present at low levels in commercial, industrial and consumer products, and in the environment.

PFAS' widespread use and low levels pose challenges for studying and evaluating the substances' potential health and environmental risks.

The Proposed Rules

The EPA's proposed rules are a response to three rulemaking petitions requesting that the agency take regulatory action on PFAS under the RCRA.

In June 2021, the governor of New Mexico petitioned the EPA to list PFAS, either individually or as a class, as RCRA hazardous wastes. The New Mexico petition incorporated two prior petitions submitted to the EPA — a September 2019 petition from the nonprofit Public Employees for Environmental Responsibility, and a January 2020 petition from the Environmental Law Clinic of the University of California, Berkeley.

The petitions also requested that the EPA list PFAS as RCRA hazardous wastes. The EPA responded to the New Mexico petition on Oct. 26, 2021, by announcing plans to initiate the rulemaking process for two new actions under the RCRA.

The PFAS Hazardous Constituent Rule and the Hazardous Waste Corrective Action Rule are the result.

The PFAS Hazardous Constituent Rule amends the EPA's regulation under the RCRA by adding the nine PFAS to the law's list of hazardous constituents, codified in Title 40 of the Code of Federal Regulations, Part 261, Appendix VIII — five more PFAS than the EPA had originally planned. The nine PFAS are:

  • Perfluorooctanoic acid;
  • Perfluorooctanesulfonic acid;
  • Perfluorobutanesulfonic acid, or PFBS;
  • Hexafluoropropylene oxide-dimer acid;
  • Perfluorononanoic acid;
  • Perfluorohexanesulfonic acid;
  • Perfluorodecanoic acid;
  • Perfluorohexanoic acid; and
  • Perfluorobutanoic acid.

To be listed as am RCRA hazardous constituent in Appendix VIII, a substance must have been shown in scientific studies to have toxic, carcinogenic, mutagenic or teratogenic effects on humans or other life forms. A finalized toxicity assessment and a final toxicity value are not required to list a substance as a hazardous constituent.

The EPA reviewed toxicity and epidemiological studies and data for the nine PFAS, and concluded that the assessments showed exposure has toxic and adverse effects on humans or other life forms. Many of the studies were experimental animal toxicity studies.

The EPA stated that its conclusions on the alleged adverse health effects of perfluorohexanoic acid and perfluorobutanesulfonic acid exposure on humans are "based primarily on animal studies." There are a "limited number of human studies examining oral [perfluorobutanesulfonic acid] exposure," the agency said.

Animal studies are significantly limited in reliably predicting human health outcomes. Differences in humans' and other animals' physiology, anatomy and metabolism make it difficult to apply data from animal studies to humans.

The Hazardous Waste Corrective Action Rule amends the definition of hazardous waste as it applies to RCRA corrective action addressing releases from the solid waste management units of permitted treatment, storage and disposal facilities, or TSDFs. If finalized, the rule would clarify that the statutory definition of hazardous waste applies to corrective action for releases from solid waste management units.

The proposed rule provides clear regulatory authority to require RCRA-permitted facilities to conduct corrective action not only for substances listed and identified as RCRA hazardous waste and hazardous constituents, but also for any substance meeting the statutory definition of hazardous waste.

The EPA maintains the proposal is consistent with its long-standing interpretation of the RCRA.

The comment periods for the Hazardous Waste Corrective Action Rule and the PFAS Hazardous Constituent Rule were set to end on March 11 and April 8, respectively.

Both rules would be effective immediately in all states on the effective date provided in the final notice.

RCRA Corrective Action

The two proposed rules would greatly strengthen the EPA's ability to address PFAS contamination under the RCRA Corrective Action Program. The proposed rules would increase both the frequency and scope of corrective action.

The rules may also be the first step toward listing PFAS as hazardous wastes under the RCRA. This would open the door to other statutory requirements, and trigger automatic listings under other environmental statutes, such as the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA — also known as the Superfund law.

Under the PFAS Hazardous Constituent Rule, facilities undergoing required corrective action would be required to consider a longer list of chemicals. The nine PFAS would be among the hazardous constituents required for consideration in RCRA facility assessments and required for further investigation and cleanup where necessary.

Under the Hazardous Waste Corrective Action Rule, solid waste management units at RCRA-permitted facilities would also become subject to corrective action for the releases of a greater number of substances under the statutory definition of hazardous waste.

By allowing the EPA to address through corrective action a much broader class of substances, this proposed rule would authorize the EPA to address emerging contaminants such as PFAS without conducting notice-and-comment rulemaking, as would normally be required.

Affected Industries

Entities potentially affected by the EPA's proposed rules include certain hazardous waste TSDFs with solid waste management units that have released, or that could release, any of the proposed PFAS hazardous constituents. Under either proposed rule, TSDFs could be subject to additional corrective action requirements for releases of the nine PFAS.

The EPA identified 56 industries most likely to be affected by the PFAS Hazardous Constituent Rule, including waste management and remediation services, chemical manufacturing, petroleum and coal products manufacturing, and fabricated metal product manufacturing.

The five industries cover over 54% of the 1,740 potentially affected facilities that the EPA identified in its rulemaking. These industries and facilities would also be affected by the Hazardous Waste Corrective Action Rule.

Facilities that would not be affected by the RCRA corrective action requirements include solid waste disposal facilities — such as municipal waste or construction and demolition landfills — and publicly owned treatment works facilities, unless those facilities were also operating as hazardous waste TSDFs.

Hazardous waste generators that are not subject to the RCRA permitting requirements would not be affected by the proposed rules.

Corrective Action Activity

The proposed rules may increase the speed, scope and total number of corrective action activities at certain TSDFs. The EPA expects that the proposed rules will likely result in additional corrective action to address the releases of PFAS.

By adding nine PFAS as listed hazardous constituents, and clarifying that corrective action extends to releases of any substance that meets the statutory definition of hazardous waste, the proposed rules provide the EPA with clear authority to address, through the RCRA Corrective Action Program, releases of the "full universe of substances that the statute intended" — such as emerging contaminants and PFAS.

Other authority already exists to require TSDFs to investigate and clean up substances not listed as RCRA hazardous constituents. For example, this authority may arise from state cleanup regulations, or the EPA's rule proposed in September 2022 to designate certain PFAS as CERCLA hazardous substances.

But the EPA's new proposed rules, if finalized, would provide express authority under the RCRA to require consideration, investigation and cleanup of the nine PFAS through the RCRA Corrective Action Program.

State-level corrective action activity may also be affected. Because the Hazardous Waste Corrective Action Rule is more stringent than existing federal requirements, RCRA-authorized states would be required to modify their programs to be equivalent to the rule. This change in authorized states' programs would further expose industries to broader corrective action.

States with authorized RCRA programs may already have regulations like the proposed rules. For example, state programs may already include one or more of the nine PFAS on their hazardous constituent lists.

But these states are not authorized to implement their regulations as RCRA requirements until the EPA approves the state program provisions. Requiring the states to go through the EPA approval process for similar regulations provides industries with more time to prepare for state-level corrective action activity.

So, industries can act now to prepare for the rules' proposed changes.

Businesses should evaluate whether any of the nine PFAS — or other PFAS compounds — were used in their TSDFs, or released previously. Such analysis is particularly important for the industries that the EPA identified as most likely to be affected by the proposed rule and by the resulting increased corrective action activity.

Paving the Way for PFAS To Be Listed as RCRA Hazardous Waste

A hazardous constituent listing is one step toward the EPA listing the nine PFAS as RCRA hazardous wastes. To add any of these nine PFAS to the RCRA hazardous waste list, the EPA would have to show that the waste contains a hazardous constituent and, after considering 11 factors, determine that it can pose a substantial present or potential hazard to human health or the environment.

If the PFAS Hazardous Constituent Rule is finalized and the nine PFAS are listed as hazardous constituents, the EPA would have to determine only that the PFAS can pose a substantial hazard before designating them as hazardous wastes.

In the PFAS Hazardous Constituent Rule, the EPA noted that "listing these PFAS as RCRA hazardous constituents does not make them, or the wastes containing them, RCRA hazardous wastes." However, this ignores the potentially broader implications of the proposed rules.

The EPA continues to evaluate available data before deciding to add PFAS compounds to the RCRA hazardous waste list. This, combined with the broadened definition in the Hazardous Waste Corrective Action Rule, signals the EPA is proceeding down this path.

Listing any of the nine PFAS compounds as hazardous wastes would open the door to other statutory requirements. For example, RCRA cradle-to-grave requirements and the cleanup authorities under CERCLA would apply to PFAS.

Listing these PFAS as hazardous wastes would also trigger regulation under state laws authorizing response actions to hazardous wastes, which often define "hazardous waste" to include any hazardous wastes listed under RCRA.

Affected industries should closely monitor the progress of the proposed rules. If the rules are finalized, industries should prepare for the regulation of releases of PFAS and other emerging contaminants under the RCRA Corrective Action Program — and for the potentially significant cleanup costs of PFAS contamination.

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