On February 8, 2024, the EPA proposed changes to regulations under the Resource Conservation and Recovery Act (RCRA) to add nine PFAS compounds, “their salts, and their structural isomers . . .” to RCRA’s hazardous constituents list. The EPA promulgates a list of hazardous constituents under RCRA “comprised of chemicals that have toxic, carcinogenic, mutagenic, or teratogenic effects on humans or other life forms.” Though adding a compound or chemical to the list of hazardous constituents does not classify it as hazardous waste, it is a precursor to the EPA doing so. To designate waste as hazardous waste under the RCRA regulations, the Agency must show that the waste contains a hazardous constituent and that it can harm human health. Additionally, hazardous constituents are often addressed in corrective action under RCRA.
EPA states that one purpose of the rule and the designation of the chemicals implicated is to provide a basis for any future action by the Agency to designate these chemicals as hazardous waste under RCRA if data shows that designation is appropriate. The designation as hazardous waste would subject the designated compounds to RCRA’s cradle to grave regulatory scheme. In the meantime, the Agency states that PFAS chemicals included in the new rule would be considered by regulatory authorities in facility assessments and regarding corrective action at hazardous waste treatment, storage, and disposal facilities (“TSDFs”) regulated under RCRA.
The Agency states in the Preamble to the rule that the current regulatory effect of this rule is likely limited, only applying to facility assessments and corrective actions at TSDFs. The Agency predicts that the PFAS compounds considered in the rule will be considered regarding releases from TSDFs only. This would exclude publicly owned treatment works that do not also function as TSDFs, sewer systems, municipal solid waste facilities, and construction or demolition landfills.
Critics argue that the RCRA corrective action program is plagued by uncertainty. Directed largely by EPA policy and guidance, its application is subject to the discretion of the Agency and 44 states that have authorized corrective action programs. The critics warn this uncertainty may lead to the rule having a greater than intended effect. The rule was promulgated in response to petitions by Public Employees for Environmental Responsibility, the Environmental Law Clinic of University of California, Berkeley, and the Governor of New Mexico to list PFAS substances as hazardous wastes.
The nine compounds are Perfluorooctanoic acid (PFOA); Perfluorooctanesulfonic acid (PFOS); Perfluorobutanesulfonic acid (PFBS); Hexafluoropropylene oxide-dimer acid (HFPO–DA or GenX); Perfluorononanoic acid (PFNA); Perfluorohexanesulfonic acid (PFHxS); Perfluorodecanoic acid (PFDA); Perfluorohexanoic acid (PFHxA); and Perfluorobutanoic acid (PFBA). The comment period for the rule lasts until April 8, 2024.