EPA Extends RCRA ​“Hazardous Constituents” Proposal to Nine PFAS

Kelley Drye Client Advisory

On January 31, 2024, the United States Environmental Protection Agency (“EPA” or ​“the Agency”) issued a proposal to amend Resource Conservation and Recovery Act (“RCRA”) regulations to include nine specific per- and polyfluoroalkyl substances (“PFAS”), their salts, and their structural isomers, to the Agency’s list of hazardous constituents. The Agency predicts that this will affect roughly 1,740 RCRA waste facilities across over 50 different industries.

The proposed rule comes in response to New Mexico Gov. Michelle Lujan Grisham’s petition to the Agency to list PFAS as hazardous waste under RCRA’s cradle-to-grave waste management system, which authorizes EPA oversight through the generation, transportation, treatment, storage, and disposal of hazardous waste. While the proposed rule stops short of listing the forever chemicals as hazardous waste, hazardous constituents are still subject to additional corrective action regulations that address the release of chemicals at RCRA hazardous waste treatment, storage, and disposal facilities.

Indeed, in response to Gov. Lujan Grisham’s June 23, 2021 petition, the Agency in October 2021 initiated a rulemaking process to propose adding four PFAS to 40 CFR Part 261 Appendix VIII (the ​“hazardous constituents” list):

  • perfluorooctanoic acid (“PFOA”);
  • perfluorooctanesulfonic acid (“PFOS”);
  • perfluorobutane sulfonic acid (“PFBS”); and
  • hexafluoropropylene oxide dimer acid (“HFPO”) (commonly referred to as ​“GenX chemicals”).

Now, over two years after this initial proposal, EPA is proposing these four chemicals and an additional five more as ​“hazardous constituents” under RCRA:

  • perfluorononanoic acid (“PFNA”);
  • perfluorohexanesulfonic acid (“PFHxS”);
  • perfluorodecanoic acid (“PFDA”);
  • perfluorohexanoic acid (“PFHxA”); and
  • perfluorobutanoic acid (“PFBA”).

This change marks a dramatic step-up in the Agency’s regulation of PFAS. As noted by the proposed rule, the change would subject an anticipated 1,740 facilities to corrective action cleanup requirements. Under RCRA’s Corrective Action Program, hazardous constituents listed under Appendix VIII are assessed for and addressed as part of the corrective action process, meaning facilities that treat, store, or dispose of these chemicals could be subject to RCRA facility assessments and, where necessary, further investigation and cleanup through the corrective action process.

Listing these PFAS as ​“hazardous constituents” under RCRA is also the first step to getting the forever chemicals categorized as ​“hazardous waste” in the future, which as mentioned above would subject them to even more stringent assessment, investigation, and cleanup waste management cradle-to-grave regulations. Indeed, while the proposed rule does not list any PFAS as ​“hazardous waste,” the Agency does note that the constituents listing ​“is a step toward a potential hazardous waste listing. To list a waste as a RCRA hazardous waste under 40 CFR 261.11(a)(3), the Agency must show that the waste contains a hazardous constituent listed on Appendix VIII and determine that it is capable of posing a substantial hazard… If finalized, this hazardous constituent listing would form part of the basis for any future action the Agency may take to list these substances as a hazardous waste.”

If finalized as proposed, the proposed rule will also subject the estimated 1,740 facilities to numerous types of environmental claims under RCRA’s enhanced liability exposure scheme. Indeed, facilities will be exposed to litigation in two vocabularies: EPA enforcement (and state enforcement where authorized) and citizen suits under RCRA Section 7002. Under RCRA’s citizen suit provisions, citizens may file suit against RCRA facilities: (1) alleged to be in violation of ​“any permit, standard, regulation, condition, requirement, prohibition, or order;” or (2) that have contributed or is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.

Thus, listing PFAS under RCRA opens one of the two largest potential PFAS floodgates for litigation that the EPA can employ. The other is a rulemaking already underway to list certain PFAS as ​“hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). In September 2022, EPA proposed to designate PFOA and PFOS as hazardous substances under CERCLA, which would similarly result in unprecedented litigation between current and past owners/operators of CERCLA sites, as well as arrangers, generators and transporters of PFAS to and from those sites. These two rulemakings represent an entirely new and particularly potent way for the federal government, states, and private citizens to use the judiciary to impose liability for releases of PFAS.

As it relates to the proposed RCRA rule, companies that have or have had these constituents in their waste streams need to consider exposure of these PFAS in numerous types of decision-making, including transactional decisions, liability exposures, or risk management strategies.

The proposed rule will be open for public comment for 60 days once published in the Federal Register. In the meantime, a prepublication version of the proposed rule can be found on the Proposal to List Nine Per- and Polyfluoroalkyl Compounds as Resource Conservation and Recovery Act Hazardous Constituents website here.