EPA To Require PFAS Cleanups at RCRA Sites

EPA this week took steps to require PFAS to be cleaned up at the nation’s more than 1,700 facilities that treat, store, or dispose of hazardous wastes (“TSDFs”). The proposed regulations are another in a progression of federal rules aimed at managing and cleaning up PFAS, including proposed or final rules under the Safe Drinking Water Act,[1] CERCLA,[2] and the Toxic Substances Control Act.[3] In a pair of rules proposed this week, EPA is using its authority under the Resource Conservation and Recovery Act (“RCRA”) to add nine PFAS compounds to the list of “hazardous constituents” to be considered “in RCRA facility assessments and, where necessary, further investigation and cleanup through the RCRA corrective action process” at TSDFs.[4] EPA also moved to expand the agency’s authority to require cleanups of TSDFs even for chemicals that EPA has never formally found to be hazardous[5]—this rule could force TSDFs to account for thousands of other PFAS and other chemicals beyond those nine PFAS listed in this week’s rulemakings.

Listing the nine PFAS as hazardous constituents would directly impact only TSDFs, not every cleanup site, and not CERCLA sites (unless they are also TSDFs). Entities potentially affected are TSDFs with solid waste management units (“SWMUs”) that “have released or could release any of the [nine] PFAS proposed to be listed as RCRA hazardous constituents” in the proposed rule. Among the 1,740 TSDFs that EPA has identified as potentially affected are 335 chemical manufacturers, 134 metals manufacturers, 14 plastics and rubber manufacturers, 79 petroleum and coal manufacturers, 52 wood products manufacturers, and 461 waste management facilities.[6]

The proposed rule does not further list the nine PFAS as hazardous wastes, meaning the nine compounds would not trigger the “cradle to grave” regulatory system that requires tracking of designated hazardous wastes—the system of manifests, annual reports, and labels that is familiar to waste generators. But the listing rule is a step in that direction. EPA notes in the rulemaking that “this hazardous constituent listing would form, part of the basis for any future action the Agency may take to list these substances as hazardous wastes.”[7]

Moreover, EPA has taken steps under other federal environmental laws, to identify PFAS waste streams. For example by requiring—by the end of 2024—reporting of PFAS in products that have been sold or imported into the United States since 2011, much of which has likely entered the waste stream.[8] Taken together, 2024 is shaping up as the year EPA will use the full force of its authority to regulate PFAS in the environment.

At Marten, we track these developments and update readers through our Newsletter, our PFAS Deskbook, as well as Monthly PFAS Briefing hosted by the Environmental Law Institute. Should you have any questions regarding the proposed RCRA rules or other PFAS regulations, please contact Victor Xu or James Pollack for more information.

[1] PFAS National Primary Drinking Water Regulation Rulemaking, 88 Fed. Reg. 18638 (Mar. 29, 2023).

[2] Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous

Substances, 87 Fed. Reg. 54415 (Sep. 6, 2022).

[3] 40 C.F.R. §§ 721.10536, 721.9482.

[4] EPA, Prepublication Copy Notice: Listing of Specific PFAS as Hazardous Constituents (Jan. 31, 2024), https://www.epa.gov/system/fil....

[5] EPA, Prepublication Copy Notice: Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units (Jan. 31, 2024), https://www.epa.gov/system/fil....

[6] EPA, Prepublication Copy Notice: Listing of Specific PFAS as Hazardous Constituents at 7–8 (Jan. 31, 2024).

[7] EPA, Prepublication Copy Notice: Listing of Specific PFAS as Hazardous Constituents at 12 (Jan. 31, 2024).

[8] James Pollack, Victor Xu & Emma Lautanen, New EPA PFAS Reporting Rule Covers Thousands of Products, Marten Law (Oct. 30, 2023), https://martenlaw.com/news/new-epa-pfas-reporting-rule-covers-thousands-of-products; James Pollack, Victor Xu & Zachary Zahner, Best Practices for Complying with PFAS Reporting Rules, Marten Law (Jan. 23, 2024), https://www.martenlaw.com/news....