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EPA Proposes Two Rules That May Increase PFAS Corrective Action at RCRA-Permitted Facilities and the Risk of Citizen Suits

February 7, 2024

EPA Proposes Two Rules That May Increase PFAS Corrective Action at RCRA-Permitted Facilities and the Risk of Citizen Suits

February 7, 2024

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While EPA appears to be downplaying the potential implications of these proposed regulations, the potential listing of these nine PFAS, coupled with the clarification of EPA’s authority, increases the risk that TSDFs will be the targets of citizen suits. 

On January 31, 2024, U.S. Environmental Protection Agency (EPA) Administrator Michael S. Regan signed two proposed rules under the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984. The first, “Listing of Specific PFAS as Hazardous Constituents,” proposes to add nine per- and polyfluoroalkyl substances (PFAS) to the list of RCRA hazardous constituents. If listed, EPA would routinely consider those nine PFAS in assessments and, where necessary, in any corrective action at any facility that treats, stores or disposes of hazardous waste (referred to as TSDFs) or that includes such a facility as part of its manufacturing operations. Further, EPA’s listing of these nine PFAS as hazardous constituents brings these substances a step closer to being listed as hazardous waste under the RCRA and as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund.

The second proposed rule, “Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units,” aims to “clarify” that TSDFs are required to conduct corrective action to address releases of “hazardous constituents” and any substance meeting the statutory definition of “hazardous waste,” see 42 U.S.C. § 6903(5), regardless of whether that substance has been specifically listed as a hazardous waste in the regulations. While this rule does not address PFAS directly, if adopted, it would bolster EPA’s claim of authority to use RCRA corrective action at permitted facilities to address not only listed hazardous waste and constituents—including the nine PFAS identified in the first proposed rule—but also emerging contaminants, such as unlisted PFAS, if it can be shown that they meet the statutory definition of “hazardous waste.” In addition to increasing the risk of EPA enforcement, adoption of these rules (and potential further listing of these substances as hazardous waste) increases the risk of citizen suits against TSDFs or others alleging permit or regulatory violations or alleging that an imminent and substantial endangerment to health or the environment exists.

The Nine PFAS Proposed for Listing

The first proposed rule would add nine PFAS, their salts and their structural isomers, to the list of hazardous constituents found at 40 CFR part 261 Appendix VIII. Originally, the EPA planned to add only four PFAS—perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), perfluorobutane sulfonic acid (PFBS) and hexafluoropropylene oxide dimer acid (HFPO-DA)—to the list. However, the proposed rule released on January 31 also includes perfluorononanoic acid (PFNA), perfluorohexanesulfonic acid (PFHxS), perfluorodecanoic acid (PFDA), perfluorohexanoic acid (PFHxA), and perfluorobutanoic acid (PFBA). The proposed rule applies to these chemical substances “regardless of whether they exist as chemical substances on their own or result from degradation of precursors.”

Who May Be Affected?

The proposed rule would affect hazardous waste treatment, storage and disposal facilities with solid waste management units that have released or could release any of the identified PFAS. Potentially affected entities may include, but are not limited to, entities involved in oil and gas extraction, utilities, textile mills, various manufacturing facilities (e.g. wood products, petroleum and coal products, chemical, metal, plastics and rubber products, computer and electrical equipment, transportation equipment), waste management and remediation services, educational services, national security and international affairs. EPA estimates that at least 1,740 facilities could be subject to additional corrective action requirements as a result of this proposed rule.

What Will TSDFs Be Required to Do?

The EPA anticipates that the proposed rule would result in additional corrective action to address releases of these nine PFAS at or associated with the operation of any TSDFs. Corrective action means the EPA or authorized states can require investigation, cleanup and other actions for these nine PFAS released from these RCRA facilities. RCRA Section 3004(u) authorizes EPA to require corrective action at permitted TSDFs regardless of the time at which the waste was placed in the solid waste unit.

The EPA admits that there are “significant uncertainties” about the costs, benefits and potential indirect impacts associated with the corrective action that may result from the proposed rule. However, EPA notes that the costs associated with listing a particular substance or substances is not one of the statutory factors considered in the cost-benefit analysis, despite the obvious potential for cost implications.

Interplay Between Hazardous Constituents, Hazardous Wastes and Hazardous Substances

The listing of these PFAS as RCRA hazardous constituents is a step toward listing them as hazardous waste. To be sure, to be considered a hazardous waste, “the Agency must [i] show that the waste contains a hazardous constituent listed on Appendix VIII and [ii] determine that it is capable of posing a substantial hazard.” If EPA adopts the proposed rule, the first part of this two-part test will be satisfied. If eventually designated as a RCRA hazardous waste, these nine PFAS will be subject to RCRA’s cradle-to-grave regulation, which applies to a broader regulatory class of generators and transporters of hazardous waste, as well as owners and operators of TSDFs.

Further, if EPA lists any PFAS as a RCRA hazardous waste (again, this has not yet happened), then that PFAS automatically becomes a hazardous substance under CERCLA, a designation with significant liability implications. Under CERCLA, responsible parties are strictly and (presumptively) jointly and severally liable for cleaning up hazardous substances released into the environment. Responsible parties include current and former owners and operators of a facility where a hazardous substance has been released and generators, arrangers and transporters of hazardous substances. EPA may order these responsible parties to perform the cleanup, or EPA or third parties may sue responsible parties for cleanup costs.

In September 2022, the EPA proposed to designate PFOA and PFOS as hazardous substances under CERCLA, followed by an advanced notice of proposed rulemaking in 2023 seeking input on whether EPA should designate additional PFAS as hazardous substances. EPA plans to issue a final rule on PFOS and PFOA in March 2024, but does not plan on addressing other PFAS under CERCLA until August 2025, when it intends to issue a notice of proposed rulemaking. In the meantime, lawmakers continue to debate potential CERCLA liability exemptions for certain “passive receivers” of PFAS.

Companion Rule Proposal Clarifies EPA’s Authority to Address Emerging Contaminants, Such as PFAS, Under RCRA

In addition to the proposal to add nine PFAS to the list of RCRA hazardous constituents, EPA released a second proposal under RCRA. Several regulations promulgated under RCRA address the EPA’s authority to require corrective action to address “hazardous waste” released from permitted TSDFs. Those regulations refer to a regulatory definition of hazardous waste that differs from and, according to EPA, is more limited than the statutory definition of hazardous waste. This second proposed rule would amend the definition of hazardous waste applicable to corrective action and clarify the requirement “that permitted facilities conduct corrective action to address releases not only of substances listed or identified as hazardous waste in the regulations but of any substance that meets the statutory definition of hazardous waste,” including hazardous constituents. According to EPA, the proposed rule is consistent with EPA’s longstanding interpretation of the term “hazardous waste” as applied to RCRA corrective action sections.

The proposed rule, if adopted, would clarify that EPA and authorized states have the authority to order corrective action at RCRA-permitted TSDFs to address releases of hazardous wastes, hazardous constituents and any other substance meeting the statutory definition of hazardous waste. While EPA is characterizing the proposed rule as a mere codification of its longstanding interpretation of RCRA, EPA expects that its “attention on addressing risks associated with PFAS will likely result in additional corrective action to address releases of those substances.” Indeed, under this proposed rule, the EPA could impose corrective action measures on not only the nine PFAS being considered for listing as hazardous constituents, but also other “emerging contaminants,” such as unlisted PFAS, if EPA finds that the statutory definition of “hazardous waste” has been met in any particular circumstance.

Further Implications: Increased Risk of Citizen Suits

While EPA appears to be downplaying the potential implications of these proposed regulations, the potential listing of these nine PFAS, coupled with the clarification of EPA’s authority, increases the risk that TSDFs will be the targets of citizen suits. These proposed regulations, and certainly any further designation of PFAS as hazardous wastes under RCRA, will bolster the claims of citizens alleging that facilities that treat, store or dispose of PFAS waste are in violation of RCRA regulatory requirements or alleging that the treatment, storage or disposal of the PFAS waste creates an imminent and substantial endangerment to health or the environment. See 42 U.S.C. 6972(a)(1). Such suits may be particularly problematic for facility owner/operators who are unaware that their facility qualifies as a TSDF.

For More Information

If you have any questions about this Alert, please contact Lindsay Ann Brown, Lori A. Mills, Sharon L. Caffrey, Brad A. Molotsky, Alyson Walker Lotman, any of the attorneys in our PFAS Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.