With the publication of two new proposed rules on February 8, 2024, EPA has taken the first step under its PFAS Strategic Roadmap to bring PFAS compounds under the umbrella of the Resource Conservation and Recovery Act (“RCRA”).  These proposals are designed to accomplish both short- and long-term objectives.  In the short-term, EPA’s proposals will make PFAS compounds subject to corrective action authorities at RCRA hazardous waste facilities.  This means that if a release occurs at such facilities, the owner or operator must investigate whether the contamination includes PFAS and, if so, remediate the contamination along with other hazardous constituents. In the long term, EPA’s proposals set the stage to list nine PFAS compounds as RCRA hazardous wastes. 

1. First Proposal: Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units

In the first proposal,[1] Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units, 89 Fed. Reg. 8598 (Feb. 8, 2024), EPA addresses unfinished business [2] in its prior rulemakings to make it clear that RCRA’s corrective action authorities are not limited to releases of hazardous wastes listed or identified in 40 C.F.R. Part 261[3], but extend to hazardous waste covered by the broader statutory definition.[4]  The clear import of the proposal is to ensure EPA’s corrective action authority extends to PFAS compounds, including the nine it proposes to list as hazardous constituents in the companion proposal discussed below.

The need for the proposal stems from a conflict between the statutory and regulatory corrective action provisions. EPA codified Section 3004(u), the corrective section of RCRA, at 40 C.F.R. § 264.101.  This section, like the statute, states that corrective action applies to releases of “hazardous waste or constituents.”  But while the term “hazardous waste” in Sections 3004 (the statutory provision) refers to the broader statutory definition, the regulatory counterpart refers to the narrower regulatory definition. See § 261.3.  Thus, current regulations arguably limit EPA’s corrective action authority to releases of  wastes listed or identified in 261. 21-.24 and 261.31- .33, contrary to the statute and EPA guidance.[5]

To accomplish its objective, EPA proposes to amend the definition of “hazardous waste” found at 40 C.F.R. § 260.10 to state that in addition to the regulatory definition (§ 261.3), hazardous waste also means, for purposes of corrective action under Section 264.101, “a waste that is subject to the requirements of RCRA section 3004(u) and (v) as provided in 40 CFR 261.1(b)(2).”  EPA makes corresponding amendments to Sections 261.1(b), and 270.2 (definitions for the hazardous waste permit program.)

By broadening the regulatory definition of “hazardous waste” to incorporate the statutory definition, EPA effectively opens the door to require corrective action for any waste that meets the statutory definition.  These wastes may include any of the thousands of PFAS compounds, “Gen-X” compounds or any other waste, provided the government shows the waste meets the statutory definition. 

2. Second Proposal: Listing of Specific PFAS as Hazardous Constituents

In the second proposal, Listing of Specific PFAS as Hazardous Constituents, 89 Fed. Reg. 8606 (Feb. 8, 2024), EPA states its intention to list nine PFAS compounds as hazardous constituents under Appendix VIII to 40 C.F.R. Part 261.  As stated at 40 CFR § 261.11(a)(3)(xi), these “[s]ubstances will be listed on appendix VIII only if they have been shown in scientific studies to have toxic, carcinogenic, mutagenic or teratogenic effects on humans or other life forms.” This seems like the simplest way to bring PFAS under RCRA corrective action authorities, and may make the first proposal superfluous.  Both Section 3004(u) of the RCRA statute and Section 264.101 of the RCRA regulations apply to “releases of hazardous waste or constituents.” (emphasis added).  Therefore, even if EPA does not finalize the first proposal, it will still have authority to compel corrective action under the statute and the regulations.  The benefit of the first proposal, however, is that it conforms the regulations with the statute and broadens corrective action authority to any hazardous wastes, such other PFAS compounds and emerging contaminants.

The second proposal, however, while achieving the short-term objective of expanding corrective action authorities to PFAS, also lays the foundation to accomplish EPA’s longer-term objective, which is to list some PFAS compounds as hazardous waste. See 89 Fed. Reg. at 8609.  One of the criteria for listing a waste as a RCRA hazardous waste is that EPA must show that the waste contains an Appendix VIII hazardous constituent and “determine that it is capable of posing a substantial hazard.” Id. It notes that if the proposal is finalized the hazardous constituent listing will form the basis for a future hazardous waste listing. Id.

EPA makes it clear that the set of facilities subject to proposal is limited to 1,740 facilities it believes “could be” subject to RCRA corrective action.  These facilities do not include publicly owned treatment works or solid waste disposal facilities. 89 Fed. Reg. at 8610. 

Nevertheless, while the short-term scope of this proposal is relatively narrow, by taking the initial step of listing the nine PFAS substances as hazardous constituents, EPA is setting the stage to list these substances as RCRA hazardous wastes, an outcome that will have significant impact on the management of PFAS wastes. The listing of PFAS compounds as a RCRA hazardous waste would pull the management of PFAS-containing waste into RCRA’s cradle-to-grave system and have widespread impacts on generators, transporters, and disposal facilities. It will also require EPA to set treatment standards for PFAS wastes under the land disposal restrictions program. How long the RCRA rulemaking effort will take is anyone’s guess, but with these two proposals, EPA has taken the first step toward regulating PFAS at the point of generation rather than after disposal has already occurred.

[1] This is identified as the “first proposal” because it appears before the hazardous constituent proposal in the Federal Register.

[2] EPA notes in the proposal that it has twice proposed to amend the definition of hazardous waste for purposes of the corrective action provisions but never finalized the rules.

[3] Specifically, wastes listed or identified as hazardous wastes in 40 C.F.R. §§ 261.21-.24 and 261.31-.34.

[4] RCRA Section 1004(5) states that, “[t]he term “hazardous waste” means a solid waste, or combination of solid waste, 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.”

[5] The irony here is that as EPA notes in the proposal, it was a legal position taken by the federal government in a dispute over a permit issued by the New Mexico Environmental Department to the Cannon Air Force that brought the inconsistency between the regulatory definition and the statutory definition to the forefront. The challenged permit proposed extending corrective action to PFAS releases. The federal government objected, arguing that because the regulatory definition of “hazardous waste” was limited to listed or identified hazardous waste, New Mexico could not make the Air Force address PFAS releases.