EPA Continues to Push Toward Regulation of PFAS By Proposing Two More New Rules Under RCRA

On January 31, 2024, EPA Administrator Michael Regan signed two proposed rules related to per- and polyfluoroalkyl substances (PFAS) and corrective action authority under the Resource Conservation and Recovery Act (RCRA). These rulemakings follow from a 2021 announcement covered in a prior Crowell client alert, adding to the growing number of pending PFAS-related proposals submitted by EPA.

PFAS Rule: Proposal to List a Total of Nine PFAS as RCRA Hazardous Constituents

The first proposed rule, “Listing of Specific PFAS as Hazardous Constituents” (EPA-HQ-OLEM-2023-0278), would list nine PFAS as “hazardous constituents” in RCRA’s Appendix VIII, 40 CFR Part 261. Listing a substance as a hazardous constituent is a preliminary step toward classifying it as a hazardous waste, which is regulated closely under RCRA’s cradle-to-grave tracking system and would result in cleanup authority under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). To classify PFAS as hazardous waste, EPA must still consider several enumerated factors after finalizing this rule to determine whether the substances are “capable of posing a substantial present or potential threat to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed.” 40 C.F.R. § 261.11(a)(3). It is unclear when these rules will be adopted.

Note, however, that EPA previously submitted other pending proposed rules regarding certain PFAS that are expected to be approved shortly. They are:

• The rule proposing the designation of PFOA and PFOS as CERCLA hazardous substances; this rule is anticipated to be approved before the summer of 2024. See Proposed Rule submitted in 2022.
• The rule proposing a PFAS National Primary Drinking Water Regulation for PFOA, PFOS, PFNA, GenX, PFHxS, and PFBS, and also proposing health-based maximum contaminant level goals (MCLGs) for these six PFAS. See Proposed Rule submitted in 2023.

Regarding listing PFAS as hazardous constituents, EPA initially named the following four PFAS in its October 26, 2021, proposed rule announcement:

1. Perfluorooctanoic acid (PFOA)
2. Perfluorooctane sulfonic acid (PFOS)
3. Perfluorobutane sulfonic acid (PFBS)
4. GenX.

Last week’s newly proposed rule names five additional PFAS, bringing the total to nine:

5. Perfluorononanoic acid (PFNA)
6. Perfluorohexane sulfonate (PFHxS)
7. Perfluorodecanoic acid (PFDA)
8. Perfluorohexanoic acid (PFHxA)
9. Perfluorobutanoic acid (PFBA)

A Listing Prepublication Copy covering all nine PFAS is currently available from EPA. Once the official version is published on the Federal Register, it will be open for public comment for 60 days. This publication covers a wide range of information, including, “Does this action apply to me?”, “Impacts of the Proposed Rule”, and “What are the incremental costs and benefits of this action?” EPA’s stated objective in this new PFAS rule “is to ensure that releases of those substances can be effectively and efficiently considered and addressed through corrective action.” See Listing Prepublication Copy, p.19.

RCRA Rule: Proposal to Clarify Authority to Order Investigation & Cleanup Under RCRA’s Corrective Action Program

The second proposed rule, “Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units” (EPA-HQ-OLEM-2023-0085), would clarify that the RCRA Corrective Action Program has the authority to require investigation and cleanup of “hazardous waste” as defined by RCRA section 1004(5). This aims to resolve an ambiguity between the RCRA section 1004(5) statutory definition and the RCRA Subtitle C regulatory definition, codifying an agency interpretation in line with prior guidance. Although this proposed rule does not specifically address PFAS, it would be a companion action facilitating the use of RCRA corrective action authority to address PFAS once classified as a RCRA hazardous waste. A Definition Prepublication Copy of the proposed rule is currently available from EPA; once the official version is published on the Federal Register, it will be open for public comment for 30 days.

Crowell, with its team of experienced energy and environmental regulatory, investigation, and enforcement attorneys, will continue to monitor any developments and provide updates on the Administration’s PFAS measures.