What To Know About the EPA’s Proposed RCRA Ruling on PFAS
Over the past eight years, the Environmental Protection Agency (EPA) has made strides in the research and measures taken to confront the growing environmental concern of per- and polyfluoroalkyl substances (PFAS). Most recently, the EPA proposed a regulation under the Resource Conservation and Recovery Act (RCRA) to allow regulators to address PFAS under the existing hazardous waste law. If the proposed rule were finalized, stricter protocols would be added to how PFAS is handled.
PFAS Listing as a Hazardous Constituent
The rule, proposed in February 2024, would add nine PFAS to the list of RCRA hazardous constituents under Part 261, Appendix VIII. The proposed rule came about as part of a response to a petition from the State of New Mexico.
According to the director of EPA’s Office of Resource Conservation and Recovery, this is the first time the EPA has listed chemicals solely as hazardous constituents as opposed to hazardous waste.
Impacts of PFAS Hazardous Constituent Listing
If the rule becomes effective, the nine PFAS listed will automatically be subject to assessment and possible cleanup under RCRA corrective actions. The distinction of the nine PFAS as “hazardous constituents” is important, as they are not subject to the same cradle-to-grave regulatory requirements as “hazardous waste.” But having PFAS listed as a hazardous constituent in Appendix VIII under C.F.R. 261.11(a)(3) will serve as a foundation for any long-term plans to make these PFAS a hazardous waste and impose cradle-to-grave liability.
According to the EPA, the purpose of this proposal is to bring these nine PFAS into the RCRA Corrective Action program, which requires that the owner or operator of a facility with a permit for the treatment, storage, or disposal of hazardous waste (a TSDF) to initiate corrective action to protect human health and the environment for all releases of hazardous wastes or hazardous constituents. This rule, if finalized, will create an additional legal avenue to force clean-up for PFAS contamination. With this, the EPA has identified 1,740 facilities that could be subject to additional corrective action requirements (831 with a higher likelihood of PFAS handling).
At this point, most states are authorized to manage their own RCRA program, so this rule may also impact state-level RCRA programs.
Long-term Prognosis
This rule, in conjunction with the proposed designation of PFOA and PFOS as hazardous substances under CERCLA and the PFAS National Primary Drinking Water Regulation, represents a major expansion of authority for EPA and state environmental agencies to regulate PFAS.
Since this is only a proposed rule, nothing stated in this rule is currently effective federally. It’s possible that the rule may be finalized before the end of 2024. However, it may be subject to a potential recall under the Congressional Review Act (CRA), depending on the outcome of the 2024 election.
The proposed rule can be found in the Federal Register.
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