On Feb. 8, 2024, the Environmental Protection Agency (EPA) issued two long-awaited connected proposals under Subtitle C of the Resource Conservation and Recovery Act (RCRA) related to per-and polyfluoroalkyl substances (PFAS) and the definition of hazardous waste. Under the proposal titled “Listing of Specific PFAS as Hazardous Constituents,” EPA seeks to add nine specific PFAS molecules, their salts and their structural isomers, to the RCRA list of hazardous constituents in Appendix VIII of 40 CFR Part 261. Their listing is a necessary step prior to defining hazardous waste based on these PFAS hazardous constituents, but the listing itself does not define or create hazardous waste. However, the listing has implications for RCRA corrective action. Due to legal reasons, the listing would be effective immediately in all states for purposes of only RCRA corrective action. For all other purposes, the listing would become effective in a state when it adopts the listing, unless the state does not have RCRA authorization, always uses current federal RCRA regulations, or has already equivalently listed the nine PFAS (effective already or immediately). Comments on the proposed PFAS listing are due on or before April 8, 2024.

Under the other proposal titled, “Definition of Hazardous Waste Applicable to Corrective Action for Releases From Solid Waste Management Units,” EPA seeks to amend and clarify the definition of hazardous waste applicable to RCRA corrective action at RCRA-permitted hazardous waste treatment, storage and disposal facilities. The main issue is that RCRA corrective action under 40 CFR § 264.101 points to the regulatory definition of hazardous waste at 40 CFR § 260.10 while EPA has been (improperly) using the statutory definition of hazardous waste at 42 USC § 6903(5) (same as RCRA § 1004(5)) for RCRA corrective action. According to EPA’s interpretation, the statutory definition of hazardous waste also includes hazard constituents (e.g., listed PFAS) independently of hazardous waste itself. EPA seeks to revise the regulatory definitions of hazardous waste at 40 CFR § 260.10 and at § 270.2 (RCRA permit program), along with needed supporting revisions elsewhere, to specify the use of the statutory definition of hazardous waste for RCRA corrective action. Due to legal reasons, these revisions would be effective immediately in all states. Comments on these proposed revisions related to the definition of hazardous waste for RCRA corrective action are due on or before March 11, 2024. ISRI may submit comments on one or both proposals.

Questions should be directed to David Wagger, ISRI Chief Scientist / Director of Environmental Management, here or at 202-662-8533.

David Wagger

David Wagger

ISRI Chief Scientist / Director of Environmental Management