Welcome to the next installment of The ELAM Group’s series exploring USEPA’s PFAS Strategic Roadmap, a comprehensive approach for addressing the challenges posed by the “forever chemicals,” also known as Per- and Polyfluoroalkyl Substances (“PFAS”). The roadmap focuses on three key objectives: Research, Restrict and Remediate. Its goal is to deepen the understanding of PFAS and limit their use, exposure, and impact.
Our previous white papers provided foundational insights into the roadmap’s goals and initial impacts. Building on that groundwork, this series explores the roadmap’s impact on compliance with other environmental laws, including the Toxic Substances Control Act (“TSCA”), Clean Water Act (“CAA”), Safe Drinking Water Act (“SDWA”), Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and more.
In this article, we examine how the latest PFAS regulatory updates may impact Resource Conservation and Recovery Act (“RCRA”) compliance and explore the broader implications for public health and environmental protection.
Managing Hazardous Waste: The Resource Conservation and Recovery Act (“RCRA”)
The Resource Conservation and Recovery Act (“RCRA”) empowers EPA to manage hazardous waste from creation to disposal, or “cradle to grave.” Under RCRA, EPA oversees the generation, transportation, treatment, storage and disposal of hazardous waste, addressing potential environmental and public health concerns.
As defined by RCRA, a hazardous waste is any material harmful to human health or the environment. These substances can take the form of liquids, solids, gases or sludges and are often produced by industrial processes. Rather than a fixed list, hazardous wastes are legally defined by four characteristics—ignitability, corrosivity, reactivity or toxicity. These traits both define hazardous waste and guide regulations to mitigate its risks.
Hazardous constituents are the specific substances that can make a waste hazardous—such as heavy metals, pesticides and certain organic compounds. Unlike listed hazardous wastes, which are explicitly named under RCRA, a waste can still be regulated if it contains a hazardous constituent above regulatory limits. This means industries must monitor and manage waste streams, even if the waste stream is not explicitly listed under RCRA.
With ongoing research into the potential risks of PFAS to human health and the environment, EPA has proposed classifying certain PFAS chemicals as hazardous constituents under RCRA. If approved, this change would expand regulations, requiring industries to track and properly dispose of PFAS-containing wastes.
EPA’s Efforts to Address PFAS Under the RCRA
In 2021, New Mexico Governor Michelle Lujan Grisham petitioned EPA for a standardized regulatory approach to manage PFAS, from production to disposal. In response, EPA initiated two rulemaking efforts in February 2024:
- EPA proposed adding nine total PFAS compounds to the list of hazardous constituents, including:
- Perfluorooctanoic acid
- Perfluorooctanesulfonic acid
- Perfluorobutanesulfonic acid
- Hexafluoropropylene oxide-dimer acid
- Perfluorononanoic acid
- Perfluorohexanesulfonic acid
- Perfluorodecanoic acid
- Perfluorohexanoic acid
- Perfluorobutanoic acid
EPA proposed broadening the definition of hazardous waste subject to RCRA corrective action. This change expands EPA’s authority under the RCRA Corrective Action Program, a program that requires facilities that treat, store or dispose of hazardous wastes to investigate and clean up contaminated soil, groundwater and surface water.
If finalized, the rule would allow EPA to take corrective action not only for RCRA-listed hazardous waste but also for any substance meeting the legal definition of hazardous waste, regardless of its RCRA-listing status. While this proposed rule does not specifically address PFAS, it would enable the use of RCRA corrective action authority to manage emerging contaminants like PFAS.
The public comment period for the proposed additions ran through April 2024. EPA was expected to finalize both rules by December 2024; however, no formal updates have since been given.
What’s Next: Implications for Affected Industries
The proposed rules are expected to particularly impact industries involved in waste management, chemical manufacturing and petroleum. These sectors will need to assess whether PFAS chemicals are used or released at their facilities, as well as the quantities involved.
After the nine PFAS chemicals are listed as hazardous constituents, they could trigger corrective action investigations at RCRA-permitted facilities, potentially leading to significant cleanup costs.
As EPA works to finalize these rules, industries that handle hazardous materials should prepare for new requirements that could reshape how PFAS and other emerging contaminants are regulated.
If your organization has used PFAS, faces PFAS liability, or operates on property where PFAS may be present, it’s crucial to assess your compliance and potential risks. Contact The ELAM Group to learn more.
