EPA Proposes Two Rules That May Increase PFAS Corrective Action at RCRA-Permitted Facilities and the Risk of Citizen Suits

On January 31, 2024, U.S. Environmental Protection Agency (EPA) Administrator Michael S. Regan signed two proposed rules under the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984. The first, “Listing of Specific PFAS as Hazardous Constituents,” proposes to add nine per- and polyfluoroalkyl substances (PFAS) to the list of RCRA hazardous constituents. If listed, EPA would routinely consider those nine PFAS in assessments and, where necessary, in any corrective action at any facility that treats, stores or disposes of hazardous waste (referred to as TSDFs) or that includes such a facility as part of its manufacturing operations. Further, EPA’s listing of these nine PFAS as hazardous constituents brings these substances a step closer to being listed as hazardous waste under the RCRA and as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund.

The second proposed rule, “Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units,” aims to “clarify” that TSDFs are required to conduct corrective action to address releases of “hazardous constituents” and any substance meeting the statutory definition of “hazardous waste,” see 42 U.S.C. § 6903(5), regardless of whether that substance has been specifically listed as a hazardous waste in the regulations. While this rule does not address PFAS directly, if adopted, it would bolster EPA’s claim of authority to use RCRA corrective action at permitted facilities to address not only listed hazardous waste and constituents—including the nine PFAS identified in the first proposed rule—but also emerging contaminants, such as unlisted PFAS, if it can be shown that they meet the statutory definition of “hazardous waste.” In addition to increasing the risk of EPA enforcement, adoption of these rules (and potential further listing of these substances as hazardous waste) increases the risk of citizen suits against TSDFs or others alleging permit or regulatory violations or alleging that an imminent and substantial endangerment to health or the environment exists.

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