Feb 82024

U.S. EPA Proposes Nine PFAS Compounds as Resource Conservation and Recovery Act Hazardous Constituents

Samuel B. Boxerman, Brittany A. Bolen and Nicole E. Noëlliste

The Environmental Protection Agency (EPA or the Agency) is proposing to expand its authority under the Resource Conservation and Recovery Act (RCRA), including to extend its corrective action powers over an additional list of per- and polyfluoroalkyl substances (PFAS). Specifically, as part of the EPA PFAS Strategic Roadmap, EPA has prioritized development of a framework to regulate PFAS. In the June 2023 Spring Unified Agenda of Regulatory and Deregulatory Actions (Agenda), which lists federal agencies’ planned “short-term” and “long-term” regulatory actions, EPA included the short-term action of a proposed rule listing certain PFAS as hazardous constituents under RCRA.

On January 31, 2024, EPA proposed a pair of rules that follows EPA’s PFAS roadmap and would expand the agency’s authority to address certain PFAS compounds. The first proposed rule, Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units, would amend the definition of “hazardous waste” and authorize EPA to require corrective actions to address releases from solid waste management units regulated under RCRA of any substance that meets the statutory definition of hazardous waste — not only substances identified as hazardous waste or constituents in the RCRA regulations.

The second proposed rule, Listing of Specific PFAS as Hazardous Constituents, would add nine PFAS substances, their salts, and their structural isomers to its list of hazardous constituents. These nine PFAS are perfluorooctanoic acid, perfluorooctanesulfonic acid, perfluorobutanesulfonic acid, hexafluoropropylene oxide-dimer acid, perfluorononanoic acid, perfluorohexanesulfonic acid, perfluorodecanoic acid, perfluorohexanoic acid, and perfluorobutanoic acid. EPA notes that “[t]hese PFAS would be added to the list of substances identified for consideration in facility assessments and, where necessary, further investigation and cleanup through the corrective action process at hazardous waste treatment, storage and disposal facilities.”

Both proposed rules were officially published in the Federal Register on February 8, 2024. Comments on the PFAS listing will be due April 8, while comments on the expansion of EPA’s RCRA authority are due on March 11.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Samuel B. Boxerman

Washington, D.C.

sboxerman@sidley.com

Brittany A. Bolen

Washington, D.C.

bbolen@sidley.com

Nicole E. Noëlliste

Washington, D.C.

nnoelliste@sidley.com

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