Coming at You Fast – The Latest on RCRA and PFAS Regulations

On February 8, 2024, the U.S. Environmental Protection Agency (EPA) published its Proposed Rule for Listing of Specific PFAS as Hazardous Constituents under the Resource Conservation and Recovery Act (RCRA). The public comment period for the proposed rule will end April 8, 2024, 60 days from the date of publication.

The proposed rule will add nine per-and polyfluoroalkyl substances (PFAS), including their acid forms, salts and structural isomers, as RCRA Hazardous Constituents, including:

PFAS Name	Acronym	CASRN
Perfluorooctanoic acid	PFOA	335-67-1
Perfluorooctanesulfonic acid	PFOS	1763-23-1
Perfluorobutanesulfonic acid	PFBS	375-73-5
Hexafluoropropylene oxide-dimer acid	Gen X	13252-13-6
Perfluorononanoic acid	PFNA	375-95-1
Perfluorohexanesulfonic acid	PFHxS	355-46-4
Perfluorodecanoic acid	PFDA	335-76-2
Perfluorohexanoic acid	PFHxA	307-24-4
Perfluorobutanoic acid	PFBA	375-22-4

These PFAS chemicals would be added to 40 CFR 261 Appendix VIII [Appendix VIII]. The designation of a chemical to the RCRA hazardous constituent list means that it has been shown in scientific studies to have toxic, carcinogenic, mutagenic or teratogenic effects on humans or other life forms. Appendix VIII identifies the universe of chemicals of concern under RCRA for two main purposes:

• Establishing requirements for monitoring and/or corrective measures in RCRA Part B permitted facilities or interim status facilities, and
• Determining if a waste contains hazardous constituents and, therefore, should be considered for “listing” as a hazardous waste.

According to EPA, the principal impacts of this rule will be on the RCRA Corrective Action Program. The RCRA hazardous constituent listings will facilitate requiring additional corrective action to address PFAS associated with solid waste management units (SWMUs) at treatment, storage and disposal facilities (TSDFs) and interim status facilities that are subject to RCRA.

For RCRA-permitted facilities (or facilities subject to RCRA) not undergoing corrective action, the potential effect of the inclusion of PFAS as hazardous constituents should also be considered. For example, the requirement for monitoring and the potential for future corrective action at a commercial TSDF will likely result in the TSDF requiring PFAS information from generators during the profiling process prior to waste acceptance.

In addition, for non-commercial TSDFs, the addition of these PFAS to Appendix VIII could result in additional investigation or monitoring for on-site SWMUs that are either undergoing or have completed corrective action.

Including a chemical in Appendix VIII enables it to be considered for hazardous waste listing, but it is distinct from a hazardous waste listing. The Appendix VIII list should NOT be used by generators to identify a waste as hazardous under the RCRA program. However, EPA has indicated that it intends to proceed toward a future rulemaking for regulating these chemicals as listed hazardous wastes.

RCRA Corrective Action for Statutory Wastes

Concurrently, EPA is proposing a rule clarifying the scope of hazardous waste subject to corrective action under RCRA. The public comment period for this proposed rule will end March 11, 2024, 30 days from the date of publication. The proposed rule will clarify the scope of corrective action to encompass the statutory definition of hazardous waste under RCRA Section 3004(u) and (v), and not be limited to the regulatory definition of hazardous waste. Once EPA receives clarified regulatory authority to drive corrective action based on the easier-to-assert statutory definition, the otherwise required steps for modifying regulations could potentially be side-stepped. This clarification is expected to result in increased corrective action activity for emerging contaminants such as PFAS.

State Authorization and Effective Dates

Proposed Rule	HSWA/non-HSWA	More Stringent/Less Stringent	EPA	Authorized States
Addition of 9 PFAS	Both	More stringent	Immediately effective on date in final rule. EPA implements until States receive authorization.	Modify their program to adopt changes and receive approval.
Definition of Corrective Action	HSWA

Adding PFAS to CERCLA & RCRA

EPA has also published a proposed rulemaking to add specific PFAS compounds as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). This proposed rule provides a reportable quantity (RQ) for the specific PFAS of 1 pound and requires reporting of releases at or above that RQ. While the proposed rule only adds this reporting requirement, a hazardous substance designation under CERCLA, as with RCRA, expands the potential scope of remedial investigations and remedial actions. The final rule has been delayed but is anticipated for spring 2024.

As far as an effective date for the addition of PFAS to CERCLA hazardous substance list in 40 CFR 302.4, Section 553(d)(3) of the Administrative Procedure Act (APA) provides that final rules shall not become effective until 30 days after publication in the Federal Register “except . . . as otherwise provided by the Agency for good cause.” The purpose of this provision is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.”

However, EPA has, in previous rule makings, determined that the addition of substances to this list is, in some circumstances, an administrative change that does not affect substantive requirements. Whether this will be the case for the addition of these PFAS chemicals remains to be seen when the final rule is published.

Considered together, these three proposed rules – listing of PFAS as RCRA hazardous constituents, clarifying that EPA can require RCRA corrective action on statutory wastes, and adding certain PFAS to CERCLA – will provide the framework for “how” the agency will require responses to PFAS impacts. It will be interesting to see how these requirements unfold given the ubiquitous distribution of detectable (part per trillion range) PFAS in the environment.

TRC Can Help

Planning today will provide valuable time to review chemicals, suppliers and the best strategy to address this new requirement. For over 50 years TRC has built teams of nationally recognized experts, including PFAS, RCRA, and CERCLA reporting, to support a wide range of industry sectors with chemical management challenges. Reach out to our experts below or your TRC project manager for assistance with PFAS-related environmental reporting.