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EPA Proposes to Designate Nine PFAS Compounds as Hazardous Constituents, Seeks Industry Input

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The clock is winding down on businesses interested in commenting on EPA’s proposal to designate nine per- and polyfluoroalkyl substances (PFAS) as hazardous constituents under the Resource Conservation and Recover Act (RCRA). See Listing of Specific PFAS as Hazardous Constituents (89 Fed. Reg. 8,606, Feb. 8, 2023).

EPA continues to seek industry input on the proposed rule, issued on February 8, 2023, and interested parties have until April 8, 2024, to submit comments.

EPA is proposing to list the following nine substances as hazardous constituents:

  1. Perfluorooctanoic acid (PFOA);
  2. Perfluorooctanesulfonic acid (PFOS);
  3. Perfluorobutanesulfonic acid (PFBS);
  4. Hexafluoropropylene oxide-dimer acid (HFPO–DA or GenX);
  5. Perfluorononanoic acid (PFNA);
  6. Perfluorohexanesulfonic acid (PFHxS);
  7. Perfluorodecanoic acid (PFDA);
  8. Perfluorohexanoic acid (PFHxA); and
  9. Perfluorobutanoic acid (PFBA).

This proposed rule highlights EPA’s continued push to expand the agency’s regulatory authority over PFAS. Listing a substance as a hazardous constituent is a precursor to designating the same substance as a hazardous waste, thus subjecting businesses who produce, use, treat, store, or dispose of these substances to RCRA’s onerous “cradle-to-grave” tracking regulations. RCRA also requires that these businesses take “corrective action,” when there is a release of a hazardous constituent into soil, ground water, surface water, and the air, requiring businesses to investigate and clean up the release. Additionally, if EPA lists these nine PFAS compounds as hazardous wastes under RCRA, each compound would automatically be subject to hazardous waste regulation under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or “Superfund”).

EPA’s proposal reinforces the potential value to businesses that may have a connection to PFAS to be proactive in terms of evaluating their liability exposure, taking measures to mitigate or offset any liabilities, and implementing longer-term strategies to phase out any PFAS used in manufacturing or processing operations. Furthermore, as the public comment period on the proposed rule has not yet closed, interested parties may wish to consider the benefits of submitting comments to perhaps influence the course of the proposed rulemaking. Pillsbury has seasoned attorneys who can assist with all such tasks, as well as the evolving law regarding PFAS.