EPA Proposal to Address PFAS Under RCRA

The Environmental Protection Agency (EPA) released pre-publication versions of two proposed rulemakings to address PFAS under the federal Resource Conservation and Recovery Act (RCRA).

Introduction:  The following text is copied from EPA’s web site:  “On June 2021, the Governor of New Mexico submitted a petition to EPA expressing concern about the risks associated with per- and polyfluoroalkyl substances and requesting PFAS, either individually or as a class, be listed as hazardous wastes under the Resource Conservation and Recovery Act. In October 2021, EPA responded to the Governor of New Mexico’s petition with a letter. EPA indicated in the letter that it would initiate the rulemaking process for two rulemakings that would help address PFAS under RCRA….”

First Proposed Rulemaking: The first proposed rulemaking would modify the definition of hazardous waste as it applies to cleanups at permitted hazardous waste facilities. The Agency states that this modification would “assure that EPA’s regulations reflect EPA’s and authorized states’ authority to require cleanup of the full range of substances that the [RCRA] intended, including emerging chemicals of concern, such as PFAS, that may present substantial hazards, at permitted facilities.”  Once the proposal is published in the Federal Register, there will be a 30-day public comment period.

Second Proposed Rulemaking: The second rulemaking is a proposal to list nine PFAS as hazardous constituents under RCRA. Once published in the Federal Register, there will be a 60-day public comment period.  The nine PFAS are the following:

  • 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 following statements are copied from EPA’s proposal “….these PFAS would be among the hazardous constituents expressly identified for consideration in RCRA facility assessments and, where necessary, further investigation and cleanup through the RCRA corrective action process at RCRA treatment, storage, and disposal facilities….Entities potentially affected by this action include hazardous waste treatment, storage, and disposal facilities (TSDFs) with solid waste management units (SWMUs) that have released or could release any of the PFAS proposed to be listed as RCRA hazardous constituents…..The scope of this proposal is limited. Listing these PFAS as RCRA hazardous constituents does not make them, or the wastes containing them, RCRA hazardous wastes. Additionally, only facilities that are hazardous waste TSDFs are subject to RCRA corrective action….Therefore, EPA anticipates that, for example, a facility such as a publicly owned treatment works (POTW), would not be potentially affected by the RCRA corrective action requirements unless the facility is a hazardous waste TSDF.”