EPA Proposes Rules to Expand its PFAS Authority Under RCRA

These rules take a much different approach relative to EPA’s past practice under RCRA by including PFAS within the scope of RCRA regulation without the full notice and comment rule-making process typically used to designate particular materials as hazardous wastes under RCRA. According to the Director of EPA’s Office of Resource Conservation and Recovery, the proposed hazardous constituents rule is the first time EPA is listing chemicals on Appendix VIII separate from a full hazardous waste listing. The implications of this novel approach remain to be seen, but at a minimum it would allow EPA (and authorized states) to take aggressive action to require PFAS cleanup under RCRA even before the formal notice-and-comment process for a potential hazardous waste listing, which would ordinarily allow a more robust analysis of the risks posed by these substances. In doing so, EPA has bypassed established regulatory processes in order to aggressively assert RCRA authorities over PFAS. Here’s what you need to know.

Recap on PFAS

According to EPA, per- and poly-fluoroalkyl substances (“PFAS”) are widely used, long-lasting chemicals which break down very slowly over time. PFAS can be found in water, air, and soil. Studies have shown that exposure to some PFAS in the environment may be linked to harmful health effects in humans and animals. Thousands of these man-made chemicals have been manufactured and used globally for many decades and they can be found in a number of sources, including commercial household products, industrial products, and construction materials. While chemicals broadly referred to as “PFAS” share certain traits, each one is unique and the health effects of some PFAS have been studied in greater depth than many of the thousands of other PFAS chemicals.

Here, EPA is proposing to further regulate nine of these substances, including several of the more well-known and studied PFAS: 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).

PFAS Constituent Rule – Hazardous Constituents

RCRA “hazardous constituents” are set forth on a list of approximately 500 chemicals in Appendix VIII of 40 C.F.R. Part 261. The PFAS Constituent Rule would add the nine PFAS, as well as their salts and isomers, to this hazardous constituents list. Once a substance is placed on this list, EPA and its state partners may include these constituents for investigation and remediation at RCRA corrective action sites. If this rule is finalized, EPA and the 44 states authorized to implement the RCRA corrective action program may identify these PFAS for inclusion in RCRA facility assessments, at the time of permit issuance or renewal for TSDFs or when there is a release of a hazardous waste or hazardous constituent. When deemed necessary, EPA and authorized states could then require further investigation into soil, groundwater, and/or air contamination, which could result in a mandated corrective action. Because EPA claims broad authority to impose corrective action requirements at both permitted and non-permitted TSDFs, it could attempt to impose these corrective action requirements on sites not currently subject to a RCRA permit. The preamble of the PFAS Constituent Rule, however, states that it will likely not affect publicly owned treatment works and solid waste disposal facilities like municipal waste or construction and demolition landfills that are not RCRA TSDFs.

Importantly, the RCRA corrective action program is not governed by clear regulations and, accordingly, is driven largely by EPA policy and guidance. Its application is thus inherently uncertain and subject to the discretion of EPA staff and that of the 44 states with authorized corrective action programs. Against this backdrop of regulatory uncertainty, EPA’s proposal to expand RCRA corrective action to PFAS will almost certainly increase the cost and uncertainty of site investigation and remedial programs for sites where PFAS are an issue. Indeed, EPA has signaled its intention to require PFAS cleanups in future corrective actions, potentially imposing significant new requirements on sites not currently subject to them.

Possible Future Implications  – Moving from “Hazardous Constituents” to “Hazardous Wastes”?

While the hazardous constituents designation for PFAS is probably best understood as a relatively technical change affecting a narrow category of facilities — although environmental groups can be expected to attempt to make use of this designation in creative ways — it may also be the prelude to designating PFAS-containing waste streams as regulated “hazardous wastes.” Indeed, EPA has openly acknowledged that this listing is a stepping stone to designating those constituents as hazardous waste in the future and proposed this rule, in part, as a response to the Governor of New Mexico’s request that EPA list the PFAS class of chemicals as a hazardous waste. Such a determination could have broad and far-reaching effects on a host of facilities, including significantly more restrictive regulatory requirements under RCRA’s “cradle-to-grave” approach. The consequences of such a designation could impose a host of new requirements on generators and transporters of PFAS-containing waste streams, increase the risk of CERCLA liability, and provide support for other kinds of claims (for example, toxic tort claims) premised on the hazardous nature of PFAS. In addition, to be listed in Appendix VIII, a substance must “have been shown in scientific studies to have toxic, carcinogenic, mutagenic or teratogenic effects on humans or other life forms.”¹ Considering the ubiquity of PFAS, such a listing could have a far-reaching impact on clean ups of contaminated properties and real property transactions.

Definition Rule

RCRA involves two separate, distinct definitions of hazardous waste. There is a statutory definition that is relatively broad, 42 U.S.C. § 9603(5), and there is a complex and detailed definitional scheme established by 40 C.F.R. Part 261. In general, the stringent, cradle-to-grave regulatory structure applies to wastes that meet the precise regulatory definition, not the broader and more general statutory one.

The Definition Rule proposes two changes to this structure. First, it proposes to amend the RCRA regulatory definition of “hazardous waste”² to include the RCRA statutory definition of “hazardous waste,” found in RCRA § 1004(5),³ but only for the purposes of corrective actions and solid waste management unit permit applications. This is done by specific language that creates an exception to the limited regulatory definition “for purposes of” two specific regulatory provisions, 40 C.F.R. § 264.101 (governing corrective action for solid waste management units) and § 270.14(d) (governing information requirements for solid waste management units). The Definition Rule also adds new statutory provisions to the current list set forth in 40 C.F.R. § 261.1(b), a list that expressly provides that the broader statutory (not regulatory) definition of “hazardous waste” applies to certain provisions in EPA’s RCRA regulations. The current regulations cover statutory provisions related to EPA’s inspection, monitoring, and imminent hazard authorities; the new regulations add references to EPA’s authority to address continuing releases from RCRA TSDFs, corrective action authority, and interim status corrective action orders. This represents a significant broadening of the way these regulations read (although EPA claims that this change is consistent with its “longstanding” view). EPA’s proposal also indicates that these requirements will be enforced at the federal level until states implementing delegated programs revise their regulations to conform to this proposal.

EPA’s stated rationale for these changes is to confirm that corrective actions at RCRA-regulated TSDFs can address anything that falls within the broader statutory definition of “hazardous waste,” arguing that this approach is consistent with its longstanding interpretation of RCRA. As a practical matter, the changes would allow such actions to address not only hazardous waste and hazardous constituents listed or identified in the regulations as a result of notice and comment rulemaking, but all substances that meet the definition of “hazardous waste” in RCRA § 1004(5). This is important because, under § 1004(5), a hazardous waste is broadly (and less precisely) defined to include any solid waste that may (1) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (2) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. By choosing to rely on this statutory definition, EPA and its authorized state program partners could claim the authority to treat chemicals, including a wide range of PFAS, as hazardous waste on the basis of undefined and potentially subjective standards, without being required to justify their approach to PFAS-containing wastes through the formal process of notice-and-comment rule making.

The major practical consequence of the Definition Rule would be to grant EPA (and the authorized states) the ability to determine what qualifies as a statutory hazardous waste on a facility-by-facility basis through the permit-writing process instead of relying on the narrower regulatory definition that focuses on specific waste streams or characteristics. EPA asserts that the changes in the rule will provide it with greater flexibility to respond to releases. Greater flexibility for EPA necessarily means reducing the regulatory certainty for the regulated community and potentially imposing significant new requirements to particular PFAS-containing materials without a meaningful ability to challenge EPA’s decision, traditionally afforded by the notice-and-comment process. From the perspective of regulated industries, this could limit a facility’s ability to predict the scope of corrective action EPA will require and could lead to more burdensome corrective actions. EPA and its state partners may take aggressive actions regarding PFAS at particular facilities absent the rigor of a formal hazardous waste determination. The Definition Rule could also lead to inconsistent approaches by states and the EPA Regions.

Although the Definition Rule is not PFAS-specific, the expanded definition is broad enough to include PFAS in addition to other non-regulatory hazardous waste. This is by design, as EPA stated that the Definition Rule was catalyzed, at least in part, by the Air Force’s lawsuit against the New Mexico Environment Department over PFAS requirements that New Mexico sought to impose in the RCRA permit for Cannon Air Force Base in Clovis, New Mexico, through New Mexico’s authorized RCRA corrective action program. The Air Force sued New Mexico alleging that the permit corrective action requirements for PFAS exceeded New Mexico’s authority under its authorized corrective action program which mirrors the federal regulations. Although EPA has previously claimed that it can subject such statutory hazardous wastes to corrective action requirements, this has been an unsettled jurisdictional area. If finalized, EPA’s proposal opens the door for EPA and the 44 authorized states to require PFAS-related corrective actions at both permitted and non-permitted TSDFs.

Going Forward

Those interested in providing feedback to EPA on these proposals, including the opportunity to advocate for changes to the proposed rules, can do so through the formal comment process. Comments for the PFAS Constituent Rule are due April 8, 2024, while comments for the Definition Rule are due March 26, 2024.

These proposed rulemakings are also another step in the Biden administration’s efforts to aggressively regulate PFAS chemicals. We recommend that parties who currently or have historically used PFAS chemicals in their operations continue to carefully monitor legislative and regulatory activity in this area. Parties should also consider how EPA’s efforts to regulate PFAS by changing regulatory structures may have similarly large impacts on non-PFAS.

Finalized PFAS-related rules include the addition of several PFAS chemicals to the Toxics Release Inventory (TRI) list, a significant new use rule that prevents anyone from resuming the manufacturing and processing of inactive PFAS without EPA review, the removal of the de minimis exemption for reporting PFAS chemicals of special concern under the Emergency Planning and Community Right-to-Know Act (EPCRA), and additional reporting of PFAS manufacturing and use and the Toxic Substances Control Act (TSCA). EPA is also reviewing whether to establish national drinking water standards for certain PFAS and list certain PFAS chemicals as hazardous substances under CERCLA.

V&E’s PFAS Taskforce

PFAS have the potential to create a host of new legal and operational considerations for a wide range of industries and have recently garnered significant attention from state and federal legislatures and environmental agencies.

Vinson & Elkins’ (V&E) PFAS Taskforce is dedicated to helping our clients navigate the emerging and complex law and regulations that may be used to address PFAS and related chemicals. By actively tracking and analyzing the different federal and state regulatory approaches to addressing PFAS — whether in water, groundwater, soil, and air — and engaging with the evolving scientific understanding of PFAS, we can help our clients build short- and long-term strategies to address potential liability, remediation, and litigation concerns regarding these emerging contaminants. Drawing upon the significant capabilities in our cross-office environmental team, V&E’s PFAS Taskforce is on hand to provide practical and tailored guidance for our clients as they prepare for the shifting PFAS landscape.

1 40 C.F.R. § 261.11(a)(3).

2 40 C.F.R. §§ 260.10 and 270.2

3 42 U.S.C. § 6903(5).