US EPA Proposes Rules to Expand Cleanup of PFAS at Hazardous Waste Sites

Environmental Law  

February 6, 2024

Last week, the U.S. Environmental Protection Agency (EPA) issued two new proposed rules, which further expand EPA’s regulatory oversight of per- and polyfluoroalkyl substances (PFAS). The first rule would modify the definition of hazardous waste as it applies to cleanups at permitted hazardous waste facilities and to clarify EPA’s authority to address emerging contaminants that are not included in the regulatory definition of hazardous waste. The second rule would add nine particular PFAS, their salts, and their structural isomers, to the Resource Conservation and Recovery Act’s (RCRA) list of hazardous constituents for potential assessments and corrective actions.

Nicknamed “forever chemicals,” PFAS have been used in a wide range of consumer products and industrial processes due to their qualities to be waterproof, stain-resistant, and nonstick. As a result, PFAS are ubiquitous and have been released into the environment and drinking water supplies through their myriad applications. In light of their historical use and prevalence, PFAS also are likely to be found at existing hazardous waste sites.

The first proposed rule would broaden the RCRA regulatory definition of “hazardous waste” so that the RCRA statutory definition of hazardous waste applies to corrective action requirements applicable to treatment, storage, and disposal facilities (TSDFs). According to EPA, “the proposed revisions would more clearly provide EPA authority to address, through corrective action for solid waste management units, releases of the full universe of substances that the statute intended – not only hazardous waste and hazardous constituents listed or identified in the regulations,” but also all substances that meet the RCRA statutory definition of hazardous waste. While this proposed rule would not directly address PFAS, it would facilitate the use of RCRA corrective action authority to address emerging contaminants such as PFAS, as well as other non-regulatory hazardous waste at RCRA permitted TSDFs.

The second proposed rule would add nine PFAS compounds to the RCRA hazardous constituents list, which would most likely affect TSDFs with solid waste management units (SWMUs) that have released or could release any of the PFAS proposed to be listed as RCRA hazardous constituents. For EPA to consider a substance as a hazardous constituent, scientific studies must show that the substances have toxic, carcinogenic, mutagenic, or teratogenic effects on humans or other life forms. The nine PFAS compounds are: Perfluorooctanoic acid (PFOA), Perfluorooctanesulfonic acid (PFOS), Perfluorobutanesulfonic acid (PFBS), Hexafluoropropylene oxide-dimer acid (HFPO), Perfluorononanoic acid (PFNA), Perfluorohexanesulfonic acid (PFHxS), Perfluorodecanoic acid (PFDA), Perfluorohexanoic acid (PFHxA), and Perfluorobutanoic acid (PFBA). The proposed rule does not directly impose any regulatory requirements nor does the rule mean that PFAS are automatically considered RCRA hazardous wastes. But it provides EPA with additional authority to require RCRA facility assessments and, where necessary, corrective action for these PFAS compounds. EPA has already identified 1,740 such facilities that could be potentially affected by this rule.

EPA released pre-publication versions of both rules here:

For questions about EPA’s rulemaking and efforts to regulate PFAS, please contact us.