The Nickel Report

On February 1, 2024, EPA released two proposed rules under the Resource Conservation and Recovery Act (RCRA) that will advance EPA’s PFAS Strategic Roadmap. These two actions would subject certain PFAS—and potentially other emerging contaminants—to RCRA corrective action and may also be a precursor to EPA listing certain PFAS as hazardous waste under RCRA. Once published in the Federal Register, comments on the Definition Rule will be due in 30 days, and comments on the PFAS Hazardous Constituent Rule will be due in 60 days.

Expansion of RCRA Corrective Action Program

Under the RCRA Corrective Action Program, EPA and the states oversee nearly 4,000 cleanups across a range of sites, including current and former chemical manufacturing plants, oil refineries, lead smelters, wood preservers, steel mills, commercial landfills, federal facilities, and others. Facilities are typically brought into the corrective action program when there is an identified release of “hazardous waste” or “hazardous constituents,” or when EPA is considering a treatment, storage, and disposal facility (TSDF) RCRA permit application.

The proposed rules would provide two different bases for releases of PFAS to become subject to RCRA corrective action. First, the proposed Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units (“Definition Rule”) codifies an interpretation that either  EPA or authorized states could determine that PFAS or other emerging contaminants, despite not being listed as hazardous waste under RCRA, nevertheless meet the statutory definition of “hazardous waste.” Under Section 1004(5) of RCRA:

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—

1. cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or
2. pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.

42 U.S.C. § 6903(5). Accordingly, if regulatory authorities  make the appropriate determination under subsection 5(B), pursuant to the Definitional Rule, those PFAS or other emerging contaminants would be subject to corrective action.

The second proposal, Listing of Specific PFAS as Hazardous Constituents (“PFAS Hazardous Constituent Rule”), would list nine PFAS as hazardous constituents under Part 261, Appendix VIII, automatically subjecting those PFAS to RCRA corrective action. Based on EPA’s Regulatory Agenda, EPA’s proposal was expected to address four PFAS substances: PFOA, PFOS, PFBS, and Gen-X. However, the proposed rule additionally addresses PFNA, PFHxS, PFDA, PFHxA, and PFBA. According to EPA, the agency focused on PFAS that have final peer reviewed assessments or toxicity studies supporting ongoing assessments by EPA and the Agency for Toxic Substances and Disease Registry (ATSDR). These nine PFAS would be subject to RCRA corrective action.

Future Listing of PFAS as Hazardous Waste Under RCRA

In addition to expanding the reach of the RCRA Corrective Action Program, these two proposed rules may be precursors to EPA listing certain PFAS as hazardous waste. EPA is proposing the rules in response to multiple petitions, including a June 2021 petition by New Mexico Governor Michelle Lujan Grisham, requesting that EPA list PFAS as a class of chemicals, or, in the alternative, list individual PFAS chemicals, under subpart C of RCRA. The petition argued that listing is necessary to the state’s ability to address historical PFAS contamination from firefighting foam at federal facilities, as the Department of Defense has challenged New Mexico’s legal authority to regulate PFAS as a statutory hazardous waste.

EPA initially declined New Mexico’s request to list PFAS as hazardous waste, instead initiating the two proposed rulemakings. However, EPA’s response to Governor Lujan Grisham made clear that subjecting PFAS to corrective action under RCRA is only a first step. In his 2021 response letter, EPA Administrator Michael Regan noted that “the addition of one or more PFAS chemicals to 40 CFR Part 261 Appendix VIII is a necessary component of a hazardous waste listing determination under 40 CFR 261.11(a)(3), and efforts undertaken to add PFAS constituents to Appendix VIII would help advance any longer-term process to make a hazardous waste listing determination in the future.” The PFAS Hazardous Constituent Rule proposal reaffirms that, “[i]f 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.” According to the director of EPA’s Office of Resource Conservation and Recovery, this is the first time EPA has listed chemicals solely as hazardous constituents and not as hazardous waste, making this a precedential rulemaking.

Implications for TSDFs, Waste Generators and Transporters, and CERCLA PRPs

By expanding the reach of the RCRA Corrective Action Program, the two proposed rules would initially affect TSDFs. EPA estimates that the PFAS Hazardous Constituent Rule alone could subject 1,740 facilities to additional corrective action requirements to address releases of PFAS, but EPA expects direct effects to be negligible. EPA posits that the proposed changes in the Definition Rule simply reflect EPA’s longstanding interpretation of RCRA and therefore would not further expand the reach of the Corrective Action Program beyond those estimated 1,740 facilities. But it is unclear whether authorized states have historically considered their ability to impose corrective action requirements for unlisted constituents. Indeed, in the process of developing the Definition Rule, EPA gathered corrective action permits that address unlisted constituents and found very few. The Definition Rule would now clearly open the door for EPA and authorized states to address emerging contaminants through individual permits without the need to conduct notice-and-comment rulemaking.

Future hazardous waste listings would have broader implications, including for waste generators and transporters, and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) potentially responsible parties (PRPs). A hazardous waste listing of one or more PFAS would subject those substances to cradle-to-grave regulation and would require generators and transporters to dispose of them at a TSDF. Listing a particular PFAS as hazardous waste under RCRA would also, in turn, lead to automatic designation of that PFAS as a hazardous substance under CERCLA. EPA has so far proposed designating only PFOA and PFOS as hazardous substances under CERCLA—although last April the agency issued an ANPRM seeking public comment on potential designation of seven additional PFAS, including PFBS and Gen-X. The inclusion of nine PFAS in the Hazardous Constituent Rule potentially lays the groundwork for substantially broader impacts under CERCLA.

EPA has not yet released the economic analyses for the two proposed rulemakings, but we expect these analyses will further explain the limited impacts that EPA predicts. These analyses will also include an environmental justice analysis. Because EPA will be providing only short comment periods for these proposals, stakeholders should begin to evaluate existing permits and consider precedents that may be set by these proposals for other contaminants. The team at Hunton Andrews Kurth LLP stands ready to answer any questions you may have.