EPA Proposes Two New Rules To Expand Its Authority To Regulate Hazardous Waste Containing PFAS
On January 31, the Environmental Protection Agency (EPA) announced two proposed rules to amend EPA’s Resource Conservation and Recovery Act (RCRA) regulations in ways that would expand the EPA’s authority to address PFAS contamination. The proposed rules would apply to hazardous waste treatment, storage, and disposal facilities with solid waste management units, which include any units “from which hazardous constituents might migrate,” including tanks, waste piles, incinerators, underground injection wells, and landfills.
Under the first proposal, EPA would add nine PFAS (per- or polyfluoroalkyl substances) to the list of “hazardous constituents” under RCRA, having concluded that these nine PFAS “have been shown in scientific studies to have toxic, carcinogenic, mutagenic, or teratogenic effects on humans or other life forms.” The express identification of these PFAS as hazardous constituents would enable EPA to consider the substances in the RCRA corrective action process, under which EPA can investigate releases of hazardous waste from solid waste management units and order monitoring, testing, and cleanup. The nine PFAS compounds are:
- Perfluorooctanoic acid (PFOA)
- Perfluorooctanesulfonic acid (PFOS)
- Perfluorobutanesulfonic acid (PFBS)
- Hexafluoropropylene oxide-dimer acid (PFOA-DA)
- Perfluorononanoic acid (PFNA)
- Perfluorohexanesulfonic acid (PFHxS)
- Perfluorodecanoic acid (PFDA)
- Perfluorohexanoic acid (PFHxS)
- Perfluorobutanoic acid (PFBA)
Under the second proposal, EPA would revise the definition of “hazardous waste” as it applies to corrective action under RCRA at permitted hazardous waste treatment, storage, and disposal facilities with solid waste management units. Specifically, EPA’s proposal would amend the definition of “hazardous waste” applicable to corrective action by expressly applying the broader statutory definition of hazardous waste rather than the narrower regulatory definition. The broader, statutory definition of hazardous waste encompasses any solid waste that “may … cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness” or “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). EPA explains in its proposal that it always intended the broader, statutory definition to apply to corrective action, but recent litigation called that into question and “caused EPA to take a fresh look at its regulations.” Although the proposal does not specifically address PFAS, it would provide regulatory authority to require corrective action to address releases of emerging contaminants such as PFAS that are not specifically enumerated as hazardous waste under EPA’s RCRA regulations but meet the statutory definition of hazardous waste. Because the RCRA Corrective Action Program requires facilities that treat, store, or dispose of hazardous wastes to investigate and remediate contaminated soil, groundwater, and surface water, the proposed definitional amendment could have significant implications for RCRA permitted treatment, storage, and disposal facilities.
Once published in the Federal Register, EPA will accept comments on the two proposed rules for 60 days and 30 days, respectively. EPA’s most recent Regulatory Agenda does not list any anticipated date for finalization of these proposals.
© Arnold & Porter Kaye Scholer LLP 2024 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.
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