On February 8, 2024, EPA published a proposed rule to list nine PFAS, their salts and their structural isomers, as hazardous constituents under RCRA regulations. If the proposed rule is finalized, the nine PFAS (PFOA, PFOS, PFBS, GenX, PFNA, PFHxS, PFDA, PFHxA, and PFBA) would be among the hazardous constituents subject to corrective action at RCRA treatment, storage, and disposal facilities (“TSDFs”). The proposed listing would not make these PFAS, or the wastes containing them, RCRA hazardous wastes. A hazardous constituent listing is a step toward a hazardous waste designation, but additional agency findings and action would be required to designate the PFAS as RCRA hazardous waste. In its proposal, EPA estimates that there are approximately 1750 facilities potentially affected, with approximately 830 of these facilities having a higher likelihood of handling PFAS.
The proposed rule responds to petitions from Public Employees for Environmental Responsibility (PEER), Environmental Law Clinic of University of California, Berkeley (UC Berkeley), and the Governor of New Mexico that requested EPA to take regulatory action on PFAS under RCRA. EPA released another proposal on the same day to amend the definition of hazardous waste as it applies to corrective action to provide clear regulatory authority to use RCRA corrective action to address emerging contaminants such as PFAS, when they meet the statutory definition of hazardous waste. The proposed rule would amend the definition of hazardous waste applicable to corrective action to address releases from solid waste management units at RCRA TSDFs and require corrective action to address releases not only of substances listed or identified as hazardous waste in the regulations, but also of any substance that meets the statutory definitions of solid waste and hazardous waste which is broader than the regulatory definitions. The statute allows EPA to use its investigative and information gathering authorities to address materials when it has reason to believe those materials may be a solid waste or a hazardous waste. EPA stated that these proposed revisions would more clearly provide the agency authority to address, through corrective action for solid waste management units, releases of the full universe of substances that the statute intended to cover. EPA expects that the proposed rule would facilitate corrective action by providing clear regulatory authority and would thereby minimize the likelihood of challenges to corrective action requirements. Both proposals are subject to public comment; the public may submit comments on the proposed clarification of the definition of hazardous waste through March 11, 2024, and on the proposed listing as hazardous constituents through April 8, 2024.