Environmental Regulations to Watch in 2024

PFAS Poised to Join RCRA’s List of “Hazardous Constituents”

SirosBy Steven M. Siros, Chair, Environmental and Workplace Health & Safety Law Practice


As expected, U.S. EPA issued two proposed rules the first of which would add nine per- and polyfluoroalkyl substances (PFAS) to the Resource Conservation and Recovery Act’s (RCRA) list of hazardous constituents and the second of which clarifies that substances that are identified as RCRA hazardous constituents are subject to RCRA’s corrective action program.  The first rule, which is at least partially in response to a petition filed by Governor Michelle Grisham of New Mexico in 2021 seeking to have PFAS identified as RCRA hazardous wastes, proposed the following nine PFAS compounds as hazardous constituents under 40 CFR Part 261 Appendix VIII:  perfluorooctanoic acid; perfluorooctanesulfonic acid; perfluorobutanesulfonic acid; hexafluoropropylene oxide-dimer acid; perfluorononanoic acid; perfluorohexanesulfonic acid; perfluorodecanoic acid; perfluorohexanoic acid, and perfluorobutanoic acid.  Under the RCRA regulations, in order for a chemical to be listed as a RCRA hazardous constituent, there must be evidence that the chemical has toxic, carcinogenic, mutagenic or teratogenic effects on humans and other living entities.  In its proposed rule, US. EPA indicates that it has determined that each of these nine compounds satisfy this requirement.  Once listed as a RCRA hazardous constituent, in addition to being a first step towards a potential RCRA hazardous waste listing, the designation allows U.S. EPA and/or delegated states to pursue RCRA corrective actions to addresses these specific PFAS at hazardous waste treatment, storage and disposal facilities.   Interestingly, in its proposed rule, U.S. EPA notes there may be 1,740 facilities potentially affected by the proposed rule.

In its second rule, U.S. EPA proposes amendments to the RCRA definition of “hazardous waste” to ensure that regulators have clear regulatory authority to address emerging contaminants that are not included under the regulatory definition of hazardous waste.  More specifically, the proposed rule is intended to validate that RCRA corrective actions address releases not only of identified hazardous wastes but any substance that meets the statutory definition of a hazardous waste.  To that end, in addition to other confirming revisions, the rule proposes the following revised definition of RCRA hazardous waste:  Hazardous waste means a hazardous waste as defined in 40 CFR 261.3 except that, for purposes of § 270.14(d), “hazardous waste” means a waste that is subject to the requirements of RCRA section 3004(u) and (v) as provided in 40 CFR 261.1(b)(2).

These rules will be open for public comment for 30 days once published in the Federal Register.  We will continue to provide timely updates on these and other PFAS-related regulations at the Corporate Environmental Lawyer blog.