The proposed rules would expand the RCRA Corrective Action regime to PFAS and potentially other emerging contaminants. They may complicate ongoing compliance efforts as well as lead to significant value chain impacts.
By Gary P. Gengel, Julia A. Hatcher, Thomas C. Pearce, and Guy Jack Mathews
The Resource Conversation and Recovery Act (RCRA) mandates a two-part “corrective action” regime:
- Permits for any “solid waste management unit” (SWMU) at a “treatment, storage or disposal facility” (TSDF) must require “corrective action” for all releases of “hazardous waste” or “hazardous constituents,” “regardless of the time at which waste was placed in such unit”[1]
- “Corrective action,” when required at any “facilities for the treatment, storage, or disposal of hazardous waste [that, pursuant to 42 U.S.C. 6921, is either] listed [as ‘hazardous waste’] or identified [as such based on ‘the characteristics of hazardous waste’],” must extend “beyond the facility boundary where necessary to protect human health or the environment”[2]
On February 8, 2024, the US Environmental Protection Agency (EPA) published two proposed rules that would apply the first part of this RCRA Corrective Action regime expressly to certain per- and polyfluoroalkyl substances (PFAS) and would potentially apply both parts of the regime to these PFAS as well as to other PFAS and non-PFAS emerging contaminants.
[1] RCRA, § 3004(u), 42 U.S.C. § 6924(u).
[2] RCRA, § 3004(v), 42 U.S.C. § 6924(v).