EPA announced plans for two separate rulemaking processes that would expand liabilities for PFAS wastes. The first — a rulemaking process to add certain PFAS chemicals as “hazardous constituents” under the Resource Conservation and Recovery Act (“RCRA”) expands remedial obligations to include PFAS at RCRA corrective action sites and could be a stepping stone to listing those PFAS as hazardous waste under RCRA. In a second, separate rulemaking, EPA will “clarify” that the RCRA Corrective Action Program applies to “hazardous waste” as broadly defined under RCRA section 1004(5). EPA concludes that the modification would clarify that PFAS and other emerging contaminants are subject to the Corrective Action Program.
Background: RCRA and CERCLA Regulation of “Hazardous” Substances and Waste
RCRA regulates hazardous waste from generation to disposal (“cradle-to-grave”) and subjects these wastes to a number of regulatory requirements. A material must first be classified as a “solid waste” before it can be classified as a “hazardous waste.” A solid waste is considered “hazardous” and subject to RCRA regulation if it exhibits a hazardous characteristic, contains a waste listed under RCRA, or is a mixture of solid waste and one or more hazardous wastes.
Once listed as a RCRA hazardous waste, the waste is also considered a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA,” also known as Superfund). CERCLA is a joint, several, and strict liability statute, meaning that any person held liable under the act can be held responsible for all covered clean-up costs. Persons who are liable for cleanup costs under CERCLA include: (1) the current owners and operators of a facility with hazardous substance contamination; (2) the former owners and operators who owned or operated the facility when hazardous substances were disposed; (3) persons who arranged for disposal of hazardous substances at a facility; and (4) persons who transported hazardous substances for disposal.
Background on the Rulemakings
On June 23, 2021, Governor Michelle Lujan Grisham of New Mexico petitioned EPA to list PFAS as either “a class of chemicals” as hazardous waste under RCRA or, in the alternative, list under RCRA individual PFAS which are known to have harmful effects to both humans and the environment. On October 26, 2021, EPA declined New Mexico’s request to list PFAS as a hazardous waste, but partially granted the petition in two other ways:
EPA proposes to add PFOA, PFOS, PFBS (perfluorobutane sulfonic acid) and GenX as RCRA “hazardous constituents.” The EPA letter states that this will be based on EPA’s evaluation of existing data for the four chemicals alongside the establishment of a record to support the proposed rule. Those chemicals listed as “hazardous constituents” are subject to corrective action requirements under RCRA at hazardous waste treatment, storage, and disposal facilities. Corrective action may include the cleanup of hazardous releases into soil, groundwater, surface water, and air.
Listing PFOA, PFOS, PFBS, and GenX as hazardous constituents could lead to the future decision to list the compounds as hazardous waste.
PFAS Under the RCRA Corrective Action Program
EPA also intends to initiate a rulemaking to “clarify” its regulations pertaining to the RCRA Corrective Action Program. According to EPA, this modification would “clarify that emerging contaminants such as PFAS can be addressed” through the RCRA Corrective Action Program, which requires investigation and cleanup of “hazardous wastes” as broadly defined under RCRA Section 1004(5).1 The language of RCRA’s Corrective Action Program regulation has narrower applicability than the statutory definition found in RCRA section 1004(5). By clarifying that the Corrective Action Program is applicable to the statutory definition of “hazardous waste,” the rulemaking will expand the scope of the Program and confirm that EPA can address PFAS (and other emerging contaminants) through RCRA corrective action.
EPA has not indicated a timeframe for the publication or finalization of these proposed rules, but its announcement is again indicative of the significant regulatory action the agency is poised to take, as further detailed in its PFAS Strategic Roadmap. Importantly, an EPA rulemaking adding certain PFAS as “hazardous constituents” under RCRA is a potential first step towards listing wastes containing these PFAS under Subpart C of RCRA. Doing so would not only subject those wastes to RCRA’s hazardous waste regulatory requirements, but would also have important implications for CERCLA cleanup liability.
CERCLA defines “hazardous substance” in relation to other statutes, to include any RCRA hazardous waste.2 Given this, if EPA later decides to list PFAS wastes under RCRA after designating certain PFAS as “hazardous constituents,” it could have transformational ramifications on the CERCLA landscape3 and serious, wide-reaching legal liability impacts for companies who own or operate facilities where PFAS is present.
Although such rulemaking efforts by EPA will take some time, businesses involved in the treatment, storage, and disposal of PFAS should keep an eye on these efforts as they progress. The RCRA Corrective Action Process focuses on results and is highly dependent on site-specific conditions. Such cleanup actions are costly and take many years to implement. Businesses should also participate in the notice and comment periods of the EPA’s rulemaking to help contour the future regulations and avoid vague, ambiguous language.