February 14, 2024

EPA Proposes RCRA Corrective Action Expansions Targeting PFAS

Holland & Knight Alert
Dianne R. Phillips | Meaghan A. Colligan | Molly Broughton


  • The U.S. Environmental Protection Agency (EPA) is proposing to amend the Resource Conservation and Recovery Act (RCRA) definition of hazardous waste applicable to corrective action to include releases from solid waste management units that are not explicitly stated as hazardous waste but meet the statutory definition.
  • Another proposed rule will list nine per- and polyfluoroalkyl substances (PFAS) compounds, their salts and structural isomers as hazardous constituents under the RCRA corrective action program.
  • This Holland & Knight alert examines the EPA's proposals and provides timelines for public comment.

The 1984 Hazardous and Solid Waste Amendments amended the Resource Conservation and Recovery Act (RCRA) to add the following sections requiring corrective action for releases of hazardous waste or hazardous constituents:

  • RCRA § 3004(u): Requires corrective action for releases of hazardous waste or hazardous constituents from Solid Waste Management Units (SWMUs) identified in a facility permit.
  • RCRA § 3004(v): Requires facility owners or operators to perform corrective action to address releases that have moved beyond a facility's boundary.

Amending the Definition of Hazardous Waste Applicable to Corrective Action for SWMU Releases

Currently, "hazardous waste" and "hazardous constituents" have regulatory definitions outlining specific chemicals that, when released, require corrective action to be taken. On Feb. 8, 2024, the U.S. Environmental Protection Agency (EPA) proposed to expand the scope of hazardous waste requiring corrective action to include chemicals that meet the statutory definition but may not be explicitly defined within RCRA.

In practice, this will allow the EPA to require solid waste management units (SWMUs) to take corrective action for releases of any substances that meet the below definition of hazardous waste in RCRA Section 1004(5) at a facility:

(5) The term "hazardous waste" means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may –

(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or

(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.

The EPA argues this change will allow the agency to enforce RCRA corrective action requirements as was intended in the law. Additionally, these revisions will grant the agency the authority to address emerging contaminants such as per- and polyfluoroalkyl substances (PFAS) that have not yet been explicitly defined as hazardous waste at RCRA-permitted treatment, storage and disposal facilities.

Listing of Specific PFAS as Hazardous Constituents

On Feb. 8, 2024, the EPA doubled down on efforts to address PFAS under RCRA by proposing to add nine PFAS compounds, their associated salts and structural isomers to a list of hazardous constituents considered in the RCRA Corrective Action Program.

The PFAS compounds to be listed as hazardous constituents are as follows:

  • 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)

This designation would require these specific PFAS to be considered throughout the RCRA Corrective Action process, including during facility assessments, investigations and cleanup. The proposed rule does not, however, require cradle-to-grave management controls that are associated with a RCRA hazardous waste designation, nor does it impose regulatory requirements on facilities unless corrective action requirements are already being imposed upon them.

The entities most likely to be affected by this action include hazardous waste treatment, storage and disposal facilities (TSDFs) with SWMUs that have released or could release any of the PFAS proposed to be listed as RCRA hazardous constituents.

Next Steps

The EPA is currently soliciting comments on both proposed rules:

  • The deadline to comment on the definition of hazardous waste applicable to corrective action for releases from SWMUs proposed rule is March 11, 2024.
  • The deadline to comment on the proposed rule to list nine specific PFAS as hazardous constituents is April 8, 2024.

For more information or any questions about the EPA proposals or other matters related to PFAS, please contact the authors or another member of Holland & Knight's Environmental Team

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.

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