U.S. EPA Proposes Listing of Specific PFAS and Hazardous Constituents
Posted: March 5th, 2024
Authors: Karen T.
The United States Environmental Protection Agency (U.S. EPA) published the proposed rule, Listing of Specific PFAS as Hazardous Constituents, in the February 8, 2024, Federal Register. The proposed rule has an open comment period until April 8, 2024.
What is U.S. EPA proposing?
U.S. EPA is proposing to amend the regulations under the Resource Conservation and Recovery Act (RCRA) to add nine per- and polyfluoroalkyl substances (PFAS), their salts, and their structural isomers to the list of hazardous constituents located in 40 CFR part 261 Appendix VIII (Appendix VIII). The purpose of the rule is to allow corrective action (pursuant to RCRA section 3004(u) and (v)) to address releases not already subject to corrective action pursuant to U.S. EPA’s corrective action regulations.
- perfluorooctanoic acid (PFOA)
- perfluorooctanesulfonic acid (PFOS)
- perfluorobutanesulfonic acid (PFBS)
- hexafluoropropylene oxide-dimer acid (HFPO–DA or GenX)
- perfluorononanoic acid (PFNA)
- perfluorohexanesulfonic acid (PFHxS)
- perfluorodecanoic acid (PFDA)
- perfluorohexanoic acid (PFHxA)
- perfluorobutanoic acid (PFBA)
What’s the difference between a hazardous waste and a hazardous constituent?
A hazardous waste is subject to the generator rules and is listed under one of the five categories established under RCRA:
- D Codes – Characteristic Wastes (Ignitable, Corrosive, Reactive, Toxic)
- F Codes – Waste from common manufacturing and industrial processes that are hazardous
- K Codes – Hazardous waste from specific sectors in industry.
- P Codes – Acute hazardous waste from pure and commercial grade formulations of unused chemicals.
- U Codes – Non-acute hazardous waste from pure and commercial grade formulations of unused chemicals.
A hazardous constituent on the other hand is a separate list of chemicals identified in Appendix VIII some of which are hazardous wastes and some which are not, but all are subject to corrective action. A hazardous constituent listing is a step toward a potential hazardous waste listing. To list a waste as a RCRA hazardous waste under 40 CFR 261.11(a)(3), the U.S. EPA must show that the waste contains a hazardous constituent listed on Appendix VIII and determine that it is capable of posing a substantial hazard.
Who does this proposed rule affect directly?
Entities potentially affected by this action include hazardous waste treatment, storage, and disposal facilities (TSDFs) with solid waste management units (SWMUs) that have released or could release any of the PFAS proposed to be listed as RCRA hazardous constituents. U.S EPA has determined potentially affected facilities with likely higher handling of PFAS that include (not exhaustive list):
- Waste Management Services
- Chemical manufacturing
- Petroleum and Coal Products manufacturing
- Merchant Wholesalers, Nondurable Goods
- Computer and Electronic Product manufacturing
- Fabricated Metal Products Manufacturing
While PFAS isn’t currently regulated at the Federal level, U.S. EPA and several states have established screening levels or action levels for cleanup. Since this rule would take affect in states at the same time as the federal rule, cleanup under RCRA could start very soon after the rule is finalized.
What are the indirect considerations?
Indirect considerations may include how you handle solid waste disposal under this proposed rule. Since Waste Management facilities are among the likely sectors affected directly by the proposed action, the sector will be looking at ways to minimize future corrective action initiated by the presence of PFAS. Multiple states are currently requiring landfills to sample PFAS in their leachate.
If the proposed rule is finalized, certain types on landfills may restrict or deny waste disposal of materials containing PFAS from industries. Restricting household waste disposal may be more difficult. Companies may need to consider alternatives if they have known PFAS.
While PFAS is not listed under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), other considerations include disclosure of PFAS use during property transactions. Buyers will want to know if there is a possibility of future corrective action for PFAS under RCRA rules.
What are the next steps?
The proposed rule currently has a comment period through April 8, 2024. You can provide comments electronically up to April 8th. This action does not have a legal deadline but is considered a significant action. We anticipate U.S. EPA will finalize the rule in the next year since this is a top priority for citizens in New Mexico to have a cleanup mechanism for Federal sites.
As with any proposed rule, you must consider how it may affect your current process and business. You may already be assessing your wastewater for an NPDES renewal or evaluating your chemicals used for TRI reporting. This would be the next step to evaluate your solid waste disposal for PFAS constituents. If you have questions about PFAS strategies, reach out to our ALL4 team or specifically to kthompson@all4inc.com or knuschke@all4inc.com.
