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Breaking Down EPA's Latest Proposed Rules: Expanded Hazardous Waste Definitions and PFAS Listings



On February 8, 2024, the United States Environmental Protection Agency (EPA) published two proposed rules under the Resource Conservation and Recovery Act (RCRA) that will expand the regulatory definition of “hazardous waste” and add nine per- and polyfluoroalkyl substances (PFAS) to the list of “hazardous constituents.” The EPA is currently soliciting comments on the rulemaking. These new proposals are separate from EPA’s earlier proposals to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)[1] and to set a Maximum Contaminant Level (MCL) for PFOA and PFOS under the Safe Drinking Water Act.[2]

As background, RCRA establishes a framework for the disposal of solid and hazardous wastes and grants the EPA authority to develop regulations and policies to promote safe management and cleanup of such wastes. PFAS are a class of manufactured chemicals employed in a wide range of industrial, commercial, and consumer settings. PFAS are notable because they do not degrade easily and are found all over the world.

Expansion of Regulatory Definitions

EPA’s first proposed rule, Definition of Hazardous Waste Applicable to Corrective Action for Releases From Solid Waste Management Units, 89 Fed. Reg. 8598 (Feb. 8, 2024), seeks to clarify EPA’s regulatory authority to take corrective action. More specifically, the rule will apply RCRA section 1004(5)’s definition of hazardous waste to: (i) the regulatory corrective action requirements under sections 264.101 and part 264 subpart S and (ii) hazardous waste facility permitting regulation in section 270.14(d). Under the proposed rule, the new regulatory definition will mirror the statutory definition: “for the purposes of 264.101 and 270.14(d), ‘hazardous waste’ means a waste that is subject to the requirements of RCRA section 3004(u) and (v) as provided in 40 CFR 261.1(b)(2).” 89 Fed. Reg. at 8606. Under the statute, a material can fall into the definition of hazardous waste if “EPA has reason to believe that the material may be . . . a hazardous waste within the meaning of section 1004(5) of RCRA.” 40 C.F.R. 261.1(b)(2)(i).

EPA believes the revisions will more clearly and explicitly detail its full authority to address all substances that meet the statutory definition of hazardous waste under the RCRA. In doing so, section 261.1(b)(2)(ii) will plainly describe the EPA’s authority to require remediation activities beyond the investigative stages of corrective action. EPA maintains that it does not expect that this regulatory revision will lead to an increase in permit conditions to address corrective action because the revisions will not change EPA’s practices, as EPA claims the proposed rule will merely codify long-standing agency practice.

Listing of Nine PFAS as Hazardous Constituents

The EPA’s second proposed rule, “Listing of Specific PFAS as Hazardous Constituents,” 89 Fed. Reg. 8606, seeks to add nine PFAS, their salts, and their structural isomers as hazardous constituents to 40 CFR part 261 Appendix VIII: PFOA, PFOS, perfuorobutanesulfonic acid (PFBS), hexafluoropropylene oxide-dimer acid (GenX), perfluorononanoic acid (PFNA), perfluorohexanesulfaonic acid (PFHxS), perfluorodecanoic acid (PFDA), perfluorohexanoic acid (PFHxA), and perfluorobutanoic acid (PFBA).

EPA believes such PFAS meet the statutory definition of RCRA hazardous constituents—i.e., PFAS “have been shown in scientific studies to have toxic, carcinogenic, mutagenic or teratogenic effects on humans or other life forms,” 40 C.F.R. 261.11(a)(3)—based on their review of the available scientific data. EPA was prompted to take this regulatory action by three petitions from Public Employees for Environmental Responsibility, Environmental Law Clinic of University of California, Berkeley, and the Governor of New Mexico, respectively.

This proposed rule will not trigger RCRA’s waste management and disposal requirements. Nor will the listing of these nine PFAS as hazardous constituents make them hazardous substances under CERCLA. See 89 Fed. Reg. at 8610 (mentioning the separate proposal to designate PFAS as CERCLA hazardous substances); Designation of Pefluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances, 87 Fed. Reg. 54415 (Sept. 6, 2022). However, because EPA is required to list substances as hazardous constituents before they can be listed as hazardous wastes, the proposed rule may have significant effects for future regulation. See, e.g., 40 C.F.R. 261.11(a) (“The Administrator shall list a solid waste as a hazardous waste only upon determining that the solid waste meets one of the following criteria: . . . (3) It contains any of the toxic constituents listed in appendix VIII[.]”); EPA, PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024 (2021). Any future hazardous waste listing will then require the EPA to conduct a careful 11-factor consideration under 40 CFR 261.11(a)(3). Once listed as hazardous wastes, RCRA’s requirements will kick in for any facilities dealing with the listed PFAS. Under the proposed rule, when corrective action requirements are imposed in the future, the proposed nine PFAS would be identified for consideration in RCRA facility assessments, along with investigations and cleanup through RCRA correct actions.

Potentially Affected Entities

Entities with hazardous waste treatment, storage, and disposal facilities with solid waste management units that have released or could release any of the proposed PFAS could be potentially affected. The EPA has identified 1,740 such facilities that could potentially be subject to additional requirements under the proposed rules. The vast majority of potentially affected entities are involved in chemical manufacturing, waste management, and remediation services, and petroleum and coal manufacturing. Companies in these fields especially should be aware of and plan for the potential increased remediation requirements.

This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.

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