EPA Takes Action on PFAs: New Hazardous Constituents Listed and Redefining Hazardous Waste


On February 8, 2024, the U.S. Environmental Protection Agency (“EPA”) unveiled two of its latest measures, proposing two rules to expand its authority over polyfluoroalkyl substances (“PFAs”), known for their widespread and persistent nature in industry and consumer products which pose risks as they degrade over time. 

Listing of Specific PFAs as Hazardous Constituents

The EPA’s first proposal lists nine PFAs, along with their salts, and their structural isomers, as hazardous constituents subject to the Resource Conservation and Recovery Act (“RCRA”).  The nine PFAs identified as hazardous constituents are:

  • Perfluorooctanoic acid (PFOA)
  • Perfluorooctanesulfonic acid (PFOS)
  • Perfluorobutanesulfonic acid (PFBS)
  • Hexafluoropropylene oxide-dimer acid (HFPO)
  • Perfluorononanoic acid (PFNA)
  • Perfluorohexanesulfonic acid (PFHxS)
  • Perfluorodecanoic acid (PFDA)
  • Perfluorohexanoic acid (PFHxA)
  • Perfluorobutanoic acid (PFBA)

By listing these nine PFAs as hazardous constituents under RCRA, the EPA aims to enhance the oversight of PFAs in waste management and facilitate their inclusion in facility assessments and corrective actions.  Corrective action refers to a series of required measures that facilities that treat, store, or dispose of hazardous wastes must engage in when hazardous constituents are released into soil, groundwater, surface water, and/or into the air.  The addition of these nine PFAs to the list will potentially affect hazardous waste treatment, storage, and disposal facilities (“TSDFs”) with solid waste management units (“SWMUs”) that have released or could release the listed PFAs.  It is important to note that the listing of these PFAs as “hazardous constituents” does not make them “hazardous wastes,” but it is a step towards a “hazardous waste” listing. 

Definition of Hazardous Waste Applicable to Corrective Action for Releases From Solid Waste Management Units

In 1984, the Hazardous and Solid Waste Amendments (“HSWA”) amended RCRA with the following “corrective action” requirements at permitted facilities:

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

The regulatory definition of “hazardous waste” found in 40 CFR Section 261.3 is used as the current definition of “hazardous waste.”  When the EPA amended RCRA with Sections 3004(u) and (v), the regulatory definition of hazardous waste was linked to corrective actions for SWMUs.  However, this definition is not consistent with the EPA’s original intent.  The EPA contends that the current approach does not fully capture the breadth of hazardous substances that warrant corrective action. 

The proposed rule aims to clarify that corrective action should address all substances meeting the statutory definition of “hazardous waste,” not just those substances currently defined within RCRA.  This involves modifying the current definition of “hazardous waste” to align with the statutory definition and the EPA’s original intent, as stated in RCRA Section 1004(5):

  • The term “hazardous waste” is defined as: any waste material – solid, liquid, or gaseous – that “because of its quantity, concentration, or physical, chemical or infectious characteristic may cause or significantly contribute to an increase in mortality, serious irreversible illness, or incapacitating reversible illness; or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed.

If adopted, the rule will allow the EPA to require SWMUs to take corrective action towards substances that meet this broader definition of “hazardous waste,” from RCRA Section 1004(5).  

We strongly encourage those with further questions regarding these proposed rules to reach out and confer with legal counsel. 

Special thanks to Farrah Ghaffarirafi, our FCPPG law clerk, for her extensive work on this alert.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

© 2024 Atkinson, Andelson, Loya, Ruud & Romo



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