Oct 282021

EPA to Initiate Rulemakings Addressing PFAS Under Resource Conservation and Recovery Act as “Hazardous Constituents”

Samuel B. Boxerman and Joseph T. Zaleski
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The U.S. Environmental Protection Agency (EPA or Agency) announced that it will initiate two separate rulemakings to address PFAS (per- and polyfluorinated substances) under the federal Resource Conservation and Recovery Act (RCRA) — the law that provides EPA with authority to address hazardous waste from “cradle to grave.” EPA announced these policy proposals in response to a petition submitted to Administrator Michael Regan by New Mexico Gov, Michelle Lujan Grisham on June 23 requesting that the Agency take regulatory action to list PFAS either collectively or individually as “hazardous waste” under Subtitle C of the Act.

EPA’s first rulemaking will propose adding four individual PFAS chemicals as “hazardous constituents” under RCRA: PFOA (perfluorooctanoic acid), PFOS (perfluorooctane sulfonic acid), PFBS (perfluorobutane sulfonic acid), and GenX (hexafluoropropylene oxide dimer acid and its ammonium salt). RCRA hazardous constituents are subject to corrective action requirements at such sites as hazardous waste treatment, storage, and disposal locations. EPA notes in its response to Gov. Grisham that listing chemicals as “hazardous constituents” is a necessary precursor to a “hazardous waste” listing determination and that the Agency’s action on these four PFAS would help to support any future RCRA hazardous waste listing decisions.

EPA’s second proposed rulemaking will clarify that the RCRA Corrective Action Program has authority to initiate investigation and cleanup for substances that meet the statutory definition of “hazardous waste” under RCRA Subtitle C. According to EPA, this “modification would clarify that emerging contaminants such as PFAS can be addressed through RCRA corrective action.”

EPA has not provided a timeframe for publishing or finalizing these proposed rules, but the Agency did cite its comprehensive commitment to address PFAS through its Strategic Roadmap, which outlines EPA’s policymaking priorities on these issues through 2024. For more insights into EPA’s PFAS Strategic Roadmap, see our previous posts here, here, and here.

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

Joseph T. Zaleski

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