February 9, 2024
On February 8, 2024, the United States Environmental Protection Agency (EPA) proposed two new rules that will support the use of the Resource Conservation and Recovery Act (RCRA) corrective action authorities to require cleanup of per- and polyfluoroalkyl substances (PFAS). The first rule proposes to add nine PFAS compounds to the list of RCRA hazardous constituents, and the second rule proposes to amend the definition of “hazardous waste” that applies to corrective action to confirm that the full breadth of the statutory, and not the regulatory, definition of that term applies to RCRA corrective action.
As the nation’s primary waste management statute, RCRA applies to solid and hazardous wastes, both of which are defined in the statute and in EPA’s implementing regulations. RCRA also address hazardous constituents, which are chemicals that have toxic, carcinogenic, mutagenic, or teratogenic effects and are listed in the RCRA regulations at 40 CFR Part 261 Appendix VIII.
These proposed regulations were prompted, in part, by a June 23, 2021 petition to the EPA from New Mexico Governor Michelle Lujan Grisham. Governor Lujan Grisham petitioned the EPA Administrator pursuant to 42 U.S.C. § 6921(c), the provision of RCRA that authorizes any state governor to “petition the Administrator to identify or list a material as a hazardous waste.” The petition was for EPA to list PFAS compounds, individually or as a class, as hazardous wastes subject to RCRA Subpart C.
The Administrator replied in a letter on October 26, 2021 partially granting the Governor’s petition. In the October reply, EPA committed to initiating rulemaking for two proposed rules: one to add the PFAS compounds PFOA, PFOS, PFBS, and GenX as RCRA hazardous constituents, and one to clarify that the statutory definition of hazardous waste at RCRA § 1004(5) applies to the corrective action program.
Governor Lujan Grisham’s petition was the latest of three such petitions that EPA has received requesting that it take action to regulate PFAS as hazardous wastes under RCRA. The two prior petitions were from Public Employees for Environmental Responsibility (September 19, 2019) and the Environmental Law Clinic of the University of California, Berkeley (January 15, 2020).
Proposal to Add Nine PFAS to List of RCRA Hazardous Constituents
In one rule, EPA proposes to amend RCRA regulations to add nine PFAS, their salts, and structural isomers to the list of hazardous constituents in Appendix VIII of the regulations (40 CFR Part 261). The proposed rule goes beyond EPA’s commitment to Governor Lujan Grisham in its October 2021 reply letter by adding five additional PFAS to those listed in the letter for designation as RCRA hazardous constituents. The nine PFAS proposed for addition are:
- Perfluorooctanoic acid (PFOA)
- Perfluorooctanesulfonic acid (PFOS)
- Perfluorobutanesulfonic acid (PFBS)
- Hexafluoropropylene oxide-dimer acid (GenX)
- Perfluorononanoic acid (PFNA)
- Perfluorohexanesulfonic acid (PFHxS)
- Perfluorodecanoic acid (PFDA)
- Perfluorohexanoic acid (PFHxA)
- Perfluorobutanoic acid (PFBA)
Hazardous constituents are chemicals that have been found to have toxic, carcinogenic, mutagenic, or teratogenic effects on humans or other life forms. EPA’s review of the scientific data on these nine PFAS found that the criteria for hazardous constituent listing were met.
Designation as hazardous constituents means that these compounds would be assessed at hazardous waste treatment, storage, and disposal facilities (TSDFs) and may warrant investigation and cleanup under RCRA’s corrective action program. The corrective action program requires that TSDFs investigate and clean up releases of hazardous waste or hazardous constituents to environmental media such as soil, groundwater, and surface water.
Hazardous constituent listing is also a step toward hazardous waste listing under the RCRA regulations, specifically under 40 CFR 261.11(a)(3). Listing PFAS compounds as hazardous wastes was the action Governor Lujan Grisham and other petitioners originally requested and would subject a waste to the full cradle-to-grave regulation under RCRA. The listing of these nine PFAS supports a move toward hazardous waste listing, though the latter is a longer and more involved process.
Public comments on this proposed rule are due April 8, 2024.
Proposal to Modify Definition of “Hazardous Waste” Applicable to RCRA Corrective Action
The second rule EPA proposes would modify the definition of hazardous waste that applies to corrective action at permitted hazardous waste TSDFs to clarify that the broader, statutory definition of the term in RCRA § 1004(5) (rather than the narrower, regulatory definition) applies. EPA does not anticipate that the change would serve to expand the corrective action program given that it has been the Agency’s longstanding position that the statutory, and not the regulatory, definition of hazardous waste applies to corrective action. The rule would merely serve to confirm EPA’s interpretation of RCRA corrective action authority to reach the full scope of statutory hazardous waste.
RCRA § 1004(5) (42 U.S.C. § 6903(5)) defines “hazardous waste” as:
(5) The term “hazardous waste” means 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.
Meanwhile, the regulatory definition of hazardous waste, found at 40 CFR § 261.3 is lengthy, highly detailed, and nuanced. Essentially, a regulatory hazardous waste under RCRA is a waste that is not excluded from the definition of hazardous waste and is either 1) a characteristic hazardous waste as defined in 40 CFR Subpart C (i.e., a waste that is ignitable, corrosive, reactive, or toxic), 2) a listed hazardous waste under 40 CFR Subpart D, or 3) a mixture of a solid waste and one or more listed hazardous wastes.
Under the statutory definition of hazardous waste, RCRA provides the authority to address emerging contaminants such as PFAS in corrective action. This clarification to the regulations would confirm EPA’s and authorized states’ authority to require investigation and cleanup of the broader statutory scope of RCRA hazardous wastes.
Public comments on this proposed rule are due March 11, 2024.
MARCH 6 UPDATE: EPA has extended the public comment period for the proposed rule to modify the definition of “hazardous waste” applicable to the corrective action program from March 11 to March 26, 2024.