EPA Announces Plans for Waste Rules That Could be a Stepping Stone to Drastically Expanding PFAS Liabilities

Vinson & Elkins LLP

EPA announced plans for two separate rulemaking processes that would expand liabilities for PFAS wastes. The first — a rulemaking process to add certain PFAS chemicals as “hazardous constituents” under the Resource Conservation and Recovery Act (“RCRA”) expands remedial obligations to include PFAS at RCRA corrective action sites and could be a stepping stone to listing those PFAS as hazardous waste under RCRA. In a second, separate rulemaking, EPA will “clarify” that the RCRA Corrective Action Program applies to “hazardous waste” as broadly defined under RCRA section 1004(5). EPA concludes that the modification would clarify that PFAS and other emerging contaminants are subject to the Corrective Action Program.

Background: RCRA and CERCLA Regulation of “Hazardous” Substances and Waste

RCRA regulates hazardous waste from generation to disposal (“cradle-to-grave”) and subjects these wastes to a number of regulatory requirements. A material must first be classified as a “solid waste” before it can be classified as a “hazardous waste.” Solid waste is considered “hazardous” and subject to RCRA regulation if it exhibits a hazardous characteristic, contains a waste listed under RCRA, or is a mixture of solid waste and one or more hazardous wastes.

Once listed as an RCRA hazardous waste, the waste is also considered a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA,” also known as Superfund). CERCLA is a joint, several, and strict liability statute, meaning that any person held liable under the act can be held responsible for all covered clean-up costs. 

Persons who are liable for cleanup costs under CERCLA include: (1) the current owners and operators of a facility with hazardous substance contamination; (2) the former owners and operators who owned or operated the facility when hazardous substances were disposed; (3) persons who arranged for disposal of hazardous substances at a facility; and (4) persons who transported hazardous substances for disposal.

Source: https://www.lexology.com/library/detail.aspx?g=4f317202-7b23-4069-9772-0ce7e2ff6c78