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Beyond the PFAS Roadmap: Are You Ready for PFAS Under RCRA?

November 3, 2021

If you’ve been following the most recent developments related to per- and polyfluoroalkyl substances (commonly referred to as “PFAS”), then you likely have heard of the PFAS Strategic Roadmap that was announced just last month by the U.S. Environmental Protection Agency (“EPA”). Though not as widely publicized, EPA also went on to announce on Oct. 26 its intent to take steps to regulate certain PFAS under the Resource Conservation and Recovery Act (“RCRA”)—something that was not covered by the Roadmap. Regulation of PFAS under RCRA will have wide-ranging implications for entities that generate, store, treat, transport, dispose of, or otherwise handle PFAS. As such, entities should prepare for and evaluate potential impacts to their operations and products, as well as identify actions they can take now and in the future.

Why did EPA announce the proposed RCRA rulemakings?

In its Oct. 26 announcement, EPA stated it was acting upon a petition from New Mexico Governor Michelle Lujan Grisham (D) to address PFAS under RCRA. Governor Grisham’s petition requested that EPA list PFAS as hazardous waste under RCRA in order to provide EPA and the states with a consistent and standardized framework for regulating PFAS from the cradle to the grave. The petition noted that, without such federal action, states like New Mexico would be left “attempting to use a patchwork of statutory and regulatory authorities that may or may not provide enough oversight to protect workers, consumers, users, and disposers of PFAS from the known harms associated with exposure.”

What would the proposed RCRA rulemakings address?

In response to Governor Grisham’s petition, EPA did not grant a request to designate PFAS as a class of chemicals considered to be hazardous waste under RCRA, but EPA did outline plans to initiate the rulemaking process for two new RCRA actions:

  1. The first rulemaking will propose designating four PFAS [perfluorooctanoic acid (“PFOA”), perfluorooctane sulfonic acid (“PFOS”), perfluorobutane sulfonic acid (“PFBS”), and hexafluoropropylene oxide (“HFPO”) dimer acid and its ammonium salt (more commonly known as “GenX”)] as RCRA Hazardous Constituents under Appendix VIII to the hazardous waste regulations at 40 CFR Part 261. This designation would, according to EPA, ensure that the four PFAS are subject to corrective action requirements and would be a necessary building block for future work to regulate these PFAS chemicals as a listed hazardous waste.
  2. The second rulemaking will propose regulatory language intended to clarify that the RCRA Corrective Action Program has the authority to require investigation and cleanup for wastes that meet the statutory definition of hazardous waste, as defined under RCRA Section 1004(5). According to EPA, this modification would clarify that emerging contaminants, such as PFAS, can be cleaned up through the RCRA corrective action process.

What does this mean for potentially-affected entities?

In short, this announcement means that additional, significant federal regulation of PFAS is coming. Designating these four PFAS as RCRA Hazardous Constituents would mean that they are one step closer to being regulated as “hazardous wastes” under RCRA and “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or “Superfund”). Given how pervasive PFAS are throughout the country, the proposed rulemakings would greatly expand the number of sites that would be subject to RCRA corrective actions and CERCLA cleanups. This would mean increased exposure for affected entities in terms of EPA-required cleanups, as well as EPA and private party cost-recovery and/or contribution actions associated with those cleanups.

With that in mind, potentially-affected entities should begin taking actions to get out ahead of EPA’s proposed rulemakings; for example, entities may wish to:

  1. Identify all current and legacy PFAS applications in their operations and/or products, particularly for PFOA, PFOS, PFBS, and GenX;
  2. Evaluate past and current waste management practices for PFAS, not only for PFOA, PFOS, PFPB, and GenX, but also for any PFAS identified in your PFAS applications; and
  3. Review the proposed rulemakings and plan to strategically participate in the public comment periods or other stakeholder engagement opportunities.

Additional background information regarding PFAS regulations and policies is available via our recent alert and webinar. If you have any questions concerning EPA’s proposed rulemakings or other PFAS questions, please contact a Clark Hill Environmental and Natural Resources attorney.

The views and opinions expressed in the article represent the view of the author and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is intended to be a substitute for professional legal advice. 

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