EPA Proposes to Extend RCRA Corrective Action Requirements to PFAS Contamination at Permitted Facilities, and PFAS Hazardous Waste Listings May be Next

March 14, 2024
Rodd W. Bender, Esq. and MGKF Technical Consultant Michael C. Nines, P.E., LEED AP

The U.S. Environmental Protection Agency (EPA) recently published two proposed rules that would allow the agency to regulate per- and polyfluoroalkyl substances (PFAS) and other emerging chemicals of concern under certain aspects of the Resource Conservation and Recovery Act (RCRA) hazardous waste program. Specifically, these rulemakings, if adopted, would make these substances subject to investigation and cleanup requirements at permitted hazardous waste facilities. Perhaps more significantly, one of the proposals would put the foundation in place for future designation of waste containing particular PFAS as listed hazardous wastes. Once designated as hazardous waste, these materials would be subject to the full universe of cradle-to-grave regulatory requirements imposed on hazardous waste generators, transporters, and treatment, storage and disposal (TSD) facilities.

PFAS are a class of chemicals used a wide variety of consumer and industrial products since the 1940s. Given their use in paints, nonstick coatings, food packaging, fire extinguishing foams, and a broad range of other products, PFAS have been found in soil and groundwater as a result of air emissions, spills, and waste disposal at manufacturing plants, landfills, and other sites. In addition, due to their persistence in the environment, PFAS can accumulate in people through consuming fish or livestock products exposed to PFAS, or through contact with or inhalation of PFAS-containing materials. As research continues into the potential health impacts of particular PFAS compounds, EPA is rapidly pursuing initiatives across several federal regulatory programs to increase data collection on PFAS use, limit PFAS releases to the environment, and accelerate cleanup of PFAS-contaminated sites. Many of these recent and upcoming EPA actions on PFAS were summarized in our 2024 Federal Forecast.

The two RCRA proposals, published together in the Federal Register on February 8, 2024, were issued in response to a 2021 petition from New Mexico Governor Michelle Lujan Grisham to regulate PFAS under RCRA. The first proposal (89 Fed. Reg. 8598) would amend the regulatory definition of hazardous waste applicable to RCRA corrective action cleanups of releases from solid waste management units (SWMUs) at permitted TSD facilities. The term hazardous waste is defined both in the RCRA statute and in the RCRA regulations. The statutory definition broadly covers solid wastes that, due to their “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.”  By contrast, the definition of hazardous waste in the RCRA regulations is limited to a specific set of listed solid wastes, and to solid wastes that exhibit one or more of the four hazard characteristics of ignitability, corrosivity, reactivity, or toxicity. In 1985, when EPA codified its authority under RCRA section 3004(u) to require corrective action for releases of hazardous waste or constituents from SWMUs at permitted TSD facilities, the agency did not address whether the narrower regulatory definition of hazardous waste, which applies to permitted hazardous waste facilities generally, should also govern its corrective action authority at such facilities, or whether the broader statutory definition should apply in this context.

In the new rulemaking, EPA intends to amend the regulatory hazardous waste definition to apply the broader statutory definition explicitly to corrective action requirements at permitted TSD facilities. EPA asserts that this amendment will make the regulatory definition of hazardous waste consistent with the plain language of RCRA and the agency’s longtime interpretation that its corrective action authority extends to releases of any substance meeting the statutory definition. EPA recognized in the preamble that although regulators developing corrective action permits have had this authority, these permits have generally been written to focus on releases of substances constituting listed or characteristic hazardous wastes. By clarifying this regulatory authority, EPA believes the rulemaking will minimize challenges to the scope of its corrective action authority. To include a non-regulatory substance in a corrective action permit, a permit writer would have to document that the substance satisfies the statutory definition of hazardous waste. Such a condition in a final corrective action permit could be challenged just like other final permit conditions.

The proposed corrective action rulemaking could apply to any substance meeting the statutory hazardous waste definition, which could potentially include PFAS substances. EPA believes its increasing attention to PFAS risks may lead more permit writers to seek to address PFAS releases in corrective action permits. However, EPA expects this to be a more likely result of the companion rulemaking also issued on February 8 (89 Fed. Reg. 8606), which would add a subset of PFAS to the list of hazardous constituents found in 40 CFR part 261 Appendix VIII.  As noted above, EPA’s corrective action authority extends to releases of “hazardous wastes or constituents” from SWMUs at permitted hazardous waste TSD facilities, and hazardous constituents on Appendix VIII are frequently investigated and remediated at corrective action sites.

The proposed hazardous constituent rulemaking would add nine PFAS, their salts, and their structural isomers, to the Appendix VIII list. These nine PFAS are:

  • perfluorooctanoic acid (PFOA),
  • perfluorooctanesulfonic acid (PFOS),
  • perfluorobutanesulfonic acid (PFBS),
  • hexafluoropropylene oxide-dimer acid (HFPO–DA or GenX),
  • perfluorononanoic acid (PFNA),
  • perfluorohexanesulfonic acid (PFHxS),
  • perfluorodecanoic acid (PFDA),
  • perfluorohexanoic acid (PFHxA), and
  • perfluorobutanoic acid (PFBA).

EPA is focusing on these particular PFAS because exposure to these substances has been shown through animal and epidemiological studies to have toxic and adverse effects on animals and/or humans. These substances have been used in a variety of applications such as fire extinguishing foams, textile treatments, production of fluoropolymers, metal plating, waxes, and other products. To be listed as a hazardous constituent on Appendix VIII, scientific studies must show that a substance has toxic, carcinogenic, mutagenic (genetic mutation-inducing), or teratogenic (fetal abnormality-inducing) effects. EPA believes existing scientific studies support designating the nine PFAS covered by this rulemaking, along with their salts and structural isomers, as satisfying these criteria.

In taking this action (along with the accompanying corrective action rulemaking), EPA expects these nine PFAS will be the subject of increased investigation and cleanup requirements under the corrective action program at permitted hazardous waste TSD facilities. EPA anticipates over 1,700 such facilities in 56 industries could face increased corrective action requirements as a result of the new rule. The proposals would not apply to facilities like publicly owned treatment works and municipal or construction and demolition debris landfills unless they operate as hazardous waste TSD facilities. The proposal will allow permitting authorities for RCRA TSD facilities, at the time of permit issuance or renewal, to require investigation for these PFAS in soil, groundwater, and/or air.

With respect to projected economic impacts, EPA argues in its proposal that due to PFAS migrating or being co-located with other hazardous constituents for which facilities are already performing remediation, resources applied to address contaminants will likely be concentrated in the same general vicinity. In addition, EPA contends that in many cases the same corrective measures applicable to PFAS contamination of soil or groundwater are already being applied to other hazardous constituents. For example, the pace of granular activated carbon (GAC) use at facilities to remediate groundwater contamination involving other hazardous constituents may simply increase to address PFAS constituents. EPA also notes that most costs for pump-and-treat remediation systems are typically associated with initial system infrastructure development already in place at TSD facilities, meaning the addition of these PFAS as hazardous constituents would have limited economic impact. Similarly, for soils, EPA suggests that excavation and disposal may already be in use at a given impacted facility, thereby limiting additional soil remediation costs. EPA is specifically requesting comment on reasonable lower and upper bounds to assess for proportional increases in corrective action costs at affected facilities due to the proposed hazardous constituent designations.

In addition to its impact on corrective action cleanups at permitted TSD facilities, the hazardous constituent rulemaking may ultimately have significantly broader implications because listing a substance as a hazardous constituent is a necessary precondition to listing a waste as a hazardous waste. To take this next step, EPA must demonstrate that the waste contains an Appendix VIII hazardous constituent and is capable of posing a substantial hazard based on eleven regulatory factors. These factors include constituent toxicity, concentration, migration potential, persistence, degradation product potential, bioaccumulation potential, plausible management scenarios, waste quantity, damage cases, coverage by other regulatory programs, and other factors as may be appropriate. Once a waste is designated as a listed hazardous waste, all RCRA cradle-to-grave hazardous waste management requirements would apply to facilities that generate, store, treat, or dispose of the listed hazardous waste. EPA states that it will continue to evaluate scientific data to determine the appropriateness of listing waste containing certain PFAS as hazardous waste.

The public comment period for the corrective action rulemaking is currently scheduled to end on March 26, and for the PFAS hazardous constituent rulemaking on April 8. If finalized, both rules would become effective in all states on the effective date included in their respective notices of final rulemaking published in the Federal Register. For questions about the PFAS and RCRA proposed rulemakings, please contact Rodd Bender or Mike Nines at 484-430-5700.