2020 Environmental Real Estate Issues

On January 31, 2024, EPA’s Administrator signed proposals to formally publish two rules to address per- and polyfluoroalkyl substances (PFAS) and other emerging chemicals. One rule will amend the definition of hazardous waste as it applies to corrective action. The other rule will change the Resource Conservation and Recovery Act (RCRA) regulations by adding nine particular PFAS compounds to the list of hazardous constituents in Title 40 of the Code of Federal Regulations Part 261 Appendix VIII.

Corrective Action to Address PFAS and other Emerging Chemicals
EPA’s goal in amending the definition of hazardous waste is to provide “clear regulatory authority to address emerging contaminants that are not included under the regulatory definition of hazardous waste.” While the proposed rule “would not specifically address PFAS, it would facilitate the use of RCRA corrective action authority to address emerging contaminants such as PFAS, as well as other substances, when they meet the statutory definition of hazardous waste at RCRA permitted treatment, storage, and disposal facilities.”

Designation of Certain PFAS as RCRA Hazardous Constituents
The proposed RCRA rule will add these nine PFAS, including their salts, and their structural isomers, to the Appendix VIII list: Perfluorooctanoic acid, Perfluorooctanesulfonic acid, Perfluorobutanesulfonic acid, Hexafluoropropylene oxide-dimer acid, Perfluorononanoic acid, Perfluorohexanesulfonic acid, Perfluorodecanoic acid, Perfluorohexanoic acid, Perfluorobutanoic acid.

Comment Periods for Both Proposed Rules
The proposal to amend the definition of hazardous waste will have a 30-day comment period from its formal publication in the Federal Register. For more information including a link for the full proposed text https://www.epa.gov/hw/proposal-clarify-authority-address-releases-hazardous-waste-treatment-storage-and-disposal

The proposed RCRA rule will have a 60-day comment period. For more information and a link to the proposed text https://www.epa.gov/hw/proposal-list-nine-and-polyfluoroalkyl-compounds-resource-conservation-and-recovery-act