EPA Releases Proposed Rule to List PFAS Chemicals as RCRA Hazardous Constituents
On February 2, the U.S. Environmental Protection Agency (EPA) released a proposed rule that would list nine specific PFAS chemicals, including PFOA and PFOS, as 'hazardous constituents' under the Resources Conservation and Recovery Act (RCRA). Under RCRA, EPA has the authority to regulate the management and handling of hazardous waste from the moment it is generated to its final disposal. EPA's proposed listing of these PFAS chemicals as 'hazardous constituents' is a first step toward eventually regulating PFAS as a 'hazardous waste,' which would trigger certain requirements for any entity handling PFAS or waste containing PFAS.
In the near term, EPA's proposed rule is not expected to directly impact airports. Listing PFAS as RCRA hazardous constituents would not trigger any obligations for airports. In the proposal, however, EPA indicated that the listing of these PFAS as hazardous constituents would form the basis for a future rulemaking to make these same substances 'hazardous waste.' Once designated as hazardous waste, airports would be required to safely manage the storage, use, and disposal of AFFF and any other materials that contain PFAS. Given the number of rulemaking initiatives that would be necessary, we do not expect any listing of PFAS as RCRA hazardous waste to occur for several years.
You can read EPA's press release here and the proposed rule here. EPA will be publishing the proposal in the Federal Register within the next few weeks. Once published, airports, industry stakeholders, and the public will have 60 days to provide comments. We will be working with our Environmental Services and Sustainability Committee and members to determine whether to file a response.
Background on RCRA. Under RCRA, EPA has the authority to regulate the management and handling of hazardous waste from the moment it is generated to its final disposal. This includes the generation, transportation, treatment, storage and disposal of such waste. EPA maintains a list of both 'hazardous constituents' and 'hazardous waste.' The agency uses the list of hazardous constituents to identify chemicals of concern under RCRA and to determine if a waste should be considered for listing as a hazardous waste. Only when EPA lists a waste as a 'hazardous waste' do all the 'cradle to grave' requirements in RCRA apply. This means that the waste is managed safely from the time it is created, while it is transported, treated, and stored, and until it is disposed.
Overview of RCRA Hazardous Constituent Listing Proposal. Under RCRA, EPA can list chemicals as 'hazardous constituents' only if they have been shown in 'scientific studies to have toxic, carcinogenic, mutagenic or teratogenic effects on humans or other life forms.' In the proposal, EPA cited animal and epidemiological studies and assessments to demonstrate that exposure to these PFAS chemicals have toxic and adverse effects in animals, humans, or both. If finalized, only EPA-permitted facilities that treat, store, and dispose of hazardous waste could be responsible for investigating and cleaning up releases of these PFAS chemicals. Other entities, such as airports, would not be subject these requirements.
EPA indicated that this rulemaking is the first step toward listing PFAS as RCRA hazardous waste. If they were listed as hazardous waste, airports would be subject to the requirements governing the cradle-to-grave management of PFAS-related chemicals and products that contain them, including AFFF. We are monitoring this rulemaking closely because we would have significant concerns if EPA were to move forward with such a listing before airports have a sufficient amount of time to transition to fluorine-free firefighting foam (F3). To do so would create complications for airports and force them to take unreasonable actions in the event of an AFFF or PFAS discharge.
RCRA versus CERCLA. Airports may be familiar with a separate EPA rulemaking to designate some PFAS chemicals as 'hazardous substances' under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), known as the Superfund law. Under CERCLA, EPA has the authority to respond directly to releases, or threatened releases, of any 'hazardous substances' that may endanger public health and/or the environment. The statute gives EPA the authority to direct parties to conduct permanent remedial actions to reduce risks associated with the release of a hazardous substance, among other things. CERCLA imposes retroactive, joint and several, and strict liability on parties that are responsible, in any way, for the release of a hazardous substance.
Other Notable EPA PFAS Initiatives. EPA is pursuing a variety of other initiatives to address PFAS-related concerns that may have an impact on airports. A brief overview of some of the major actions is as follows:
Proposed Rule on PFOA/PFOS CERCLA Hazardous Substance Designations: In September 2022, EPA released a proposed rule that would designate PFOA and PFOS as CERCLA hazardous substances based on the potential human health and environmental hazards associated with exposure to the chemicals. AAAE strongly responded to the proposal, arguing that the designation would be a draconian measure that causes unintended consequences and unfairly punishes airports for procuring and using AFFF in accordance with federal requirements and in the interest of public safety. EPA is targeting the first half of 2024 to publish a final rule.
Guidance on Destruction and Disposal of PFAS: EPA is expected to update its interim guidance on the destruction and disposal of PFAS and PFAS-containing materials, such as AFFF, based on public comments and new research in this area. The interim guidance was originally released for public comment in December 2020. In comments filed in early 2021, AAAE emphasized the lack of clarity for airports in navigating this area and the need for reasonable destruction and disposal options. The updated guidance is expected to be released in the first quarter of 2024. However, some EPA officials have already publicly signaled that the agency still does not have significant data to provide 'more definite recommendations' on possible disposal and destruction methods.
PFOA/PFOS Drinking Water Regulation: In early 2023, EPA released a proposed rule that, under the Safe Drinking Water Act, would establish a national primary drinking water regulation (NPDWR), including a maximum contaminant level (MCL) of 4 ppt for PFOA and PFOS. EPA believes this is the level at which the chemicals can be reliably measured. EPA is expected to release a final rule to establish the NPDWR/MCL before summer 2024.
What's Next? EPA is expected to publish the proposed rule in the Federal Register within the next few weeks. This will trigger a 60-day comment period where the public will have an opportunity to weigh in on the proposal. We will be working with members to determine whether to file a response. We expect that EPA will move forward with a final rule by the end of the year before any potential change in administrations. In the meantime, we will keep our members apprised of any notable updates on this rulemaking or other PFAS-related actions.