• The US EPA has proposed to regulate nine PFAS as “hazardous constituents,” which would require considering PFAS when taking corrective action during certain hazardous waste investigations and cleanups.
• PFAS are chemicals found in many products—from nonstick pans to water resistant clothing to fire-fighting foam—which the EPA has found are a “substantial hazard” to people and the environment.
• The proposed rule would exclude publicly owned treatment works, but would set the stage for further regulation under RCRA as regulated “hazardous waste.”

On January 31, the U.S. Environmental Protection Agency released a prepublication notice of a proposed rule to add nine per- and polyfluoroalkyl substances, or PFAS, to the Resource Conservation and Recovery Act’s list of “hazardous constituents.”

The Act, known as RCRA, regulates the generation, transportation, treatment, storage, and disposal of solid waste and hazardous waste. When a facility releases a hazardous waste to the environment, RCRA authorizes “corrective actions” that can require investigating and cleaning up the release. And to prevent or minimize the risk of those releases, RCRA imposes rigorous “cradle-to-grave” requirements for handling hazardous wastes, like requirements for labeling, storage, recordkeeping, and chain-of-custody tracking through manifests.

The EPA’s proposed rule explains that it is listing nine PFAS as RCRA “hazardous constituents” because studies the EPA relies on have found that PFAS are “capable of posing a substantial hazard.” Designating these PFAS as “hazardous constituents” most significantly affects the “corrective action” process for facilities that treat, store, or dispose of hazardous wastes. When such a facility must take “corrective action” to investigate and clean up hazardous waste in the environment, it begins with a facility or site assessment. The proposed rule would require that the facility making that facility assessment consider these nine PFAS compounds.

The proposed rule also explains that listing these PFAS as hazardous constituents “does not make them, or the wastes containing them, RCRA hazardous wastes.” The RCRA hazardous constituent list instead helps identify chemicals of concern, which may lead the EPA to later listing the chemical as a “hazardous waste.” 

This distinction between hazardous constituents and hazardous wastes is relevant in part because, unlike “hazardous wastes,” hazardous constituents are not subject to RCRA’s rigorous “cradle-to-grave” requirements. The distinction also is relevant because this hazardous constituent listing only applies to facilities that treat, store, and dispose hazardous waste. So, as the proposed rule explains, “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.” Nor would the rule apply to solid waste disposal facilities like municipal waste or construction and demolition landfills that are not hazardous waste treatment, storage, and disposal facilities.

The EPA’s proposed rule under RCRA is one of many actions it and states like California are taking to regulate PFAS. Regulated entities thus should be aware of these regulatory developments under other laws, including the Clean Water Act, Safe Drinking Water Act, CERCLA (commonly known as the Superfund), and consumer product laws. For this proposed rule, the EPA will accept public comments on the proposed rule until 60 days after it publishes the rule in the Federal Register. Because the EPA’s January 31st announcement was a prepublication notice, the time for public comments has not yet begun as of the date of this alert.