Recent Resource Conservation and Recovery Act (RCRA) Action
On January 31, 2024, the United States Environmental Protection Agency (EPA) issued a pre-publication notice of the proposed listing of nine per-and polyfluoroalkyl substances (PFAS) and their allied forms (i.e., salts and isomers) as Hazardous Constituents (HC) under Resource Conservation and Recovery Act (RCRA; 40 CFR Part 261 Appendix VIII). The agency has looked at listing only four PFAS previously. The latest notice expands the proposed list by an extra five.
The nine proposed PFAS are:
Original four
perfluorooctanoic acid (PFOA)
perfluorooctanesulfonic acid (PFOS)
perfluorobutanesulfonic acid (PFBS)
hexafluoropropylene oxide-dimer acid (HFPO-DA)
Additional five
perfluorononanoic acid (PFNA)
perfluorohexanesulfonic acid (PFHxS)
perfluorodecanoic acid (PFDA)
perfluorohexanoic acid (PFHxA)
perfluorobutanoic acid (PFBA)
The proposed listing speaks to the agency’s intent not only to expand the number of PFAS-regulated constituents but also to broaden the extent of environmental rules that include them. The EPA’s progress report progress report cites RCRA as one of the regulatory mechanisms. The proposed rule provides details. We digest the rule and summarize key findings.
What’s RCRA?
Succinctly, RCRA regulates “harmful” waste from cradle to grave. The RCRA lifecycle encompasses generation, transportation, monitoring, cleanup, treatment, storage, and disposal. EPA provides oversight and enforcement, with some states authorized to administer the base RCRA regulations. For reference, Table 1 in 40 CFR 271.1 identifies federal program requirements to take effect in most states, regardless of their delegation status.
RCRA Listing Rationale
In addition to receiving several “listing” petitions from various organizations, the EPA has determined that exposure to the named PFAS is associated with adverse effects in animals and humans. EPA’s determination is based on meeting certain criteria for listing substances as RCRA HCs that consider scientific/epidemiologic evidence of toxic, carcinogenic, mutagenic, or teratogenic effects on humans or laboratory animals.
Why is This Important
RCRA HC listing for PFAS will likely impact a wide range of entities. EPA lists dozens of potentially impacted businesses, including: oil/gas, mining, utilities, and manufacturing to transportation, real estate, and waste management/remediation. The latter include hazardous waste treatment, storage, and disposal facilities with solid waste management units. EPA has identified over 1,700 facilities that could be subject to corrective action under RCRA Section 3004(u, v). Should a corrective action be imposed on an RCRA treatment, storage, or disposal facility, the nine listed PFAS would be among the HCs identified for assessments and possible investigation and cleanup through the prescribed process.
Key Message
Once promulgated, the proposed rule does not by itself impose regulatory requirements. The listing of the nine PFAS as HCs does not translate into RCRA hazardous waste designation but references to hazardous constituents are found in several sections of the Federal hazardous waste regulations and these sections would be accordingly impacted. Additionally, the HC listing has specific required actions under the RCRA corrective action program regarding further investigation and cleanup. Moreover, the hazardous constituent listing puts PFAS closer to the potentially hazardous waste (HW) category under 40 CFR 261.11(a)(3). Before HW can be declared for PFAS, however, EPA must determine that waste contains Appendix VIII PFAS HCs capable of posing a substantial hazard based on regulatory factors specified in 40 CFR 261.11(a)(3)2. This is something that the agency will continue to look into.
Next steps
EPA will be opening docket EPA-HQ-OLEM-2023-0278 for public comments. We will let you know when the proposed rule is published in the Federal Register and advise you of the 60-day commenting deadline.
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