EPA Proposes Two Rules That May Increase PFAS Corrective Action At RCRA-Permitted Facilities And The Risk Of Citizen Suits

On January 31, 2024, U.S. Environmental Protection Agency (EPA) Administrator Michael S. Regan signed two proposed rules under the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984. The first, "Listing of Specific PFAS as Hazardous Constituents," proposes to add nine per- and polyfluoroalkyl substances (PFAS) to the list of RCRA hazardous constituents. If listed, EPA would routinely consider those nine PFAS in assessments and, where necessary, in any corrective action at any facility that treats, stores or disposes of hazardous waste (referred to as TSDFs) or that includes such a facility as part of its manufacturing operations. Further, EPA's listing of these nine PFAS as hazardous constituents brings these substances a step closer to being listed as hazardous waste under the RCRA and as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also