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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

On February 8, 2024, the U.S. Environmental Protection Agency (EPA) proposed two new rules to implement the agency’s <a href="https://www.epa.gov/pfas/key-epa-actions-address-pfas" target="_blank" rel="noreferrer noopener">ongoing efforts to regulate PFAS</a>.

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Both proposed rules relate to regulations under the Resource Conservation and Recovery Act (RCRA), the federal statute that regulates hazardous wastes from cradle to grave. If adopted, the rules would have immediate effects for RCRA treatment, storage and disposal (TSD) facilities — the “grave” of many hazardous wastes under RCRA’s regulatory scheme. While EPA characterizes the proposed rules as narrow, the rules could have broad-reaching future effects.

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RCRA Definition of Hazardous Waste for Corrective Actions

The first proposed rule relates to corrective action requirements at TSD facilities. The RCRA’s corrective action requirements require TSD facilities to investigate and clean up hazardous waste released into soil, groundwater or surface water. The proposed rule would replace the current regulatory definition of hazardous waste — which is limited to specific listed wastes and wastes that exhibit one or more characteristics of ignitability, corrosivity, reactivity or toxicity — with the broader statutory definition. <a href="https://www.law.cornell.edu/definitions/uscode.php?width=840&amp;height=800&amp;iframe=true&amp;def_id=42-USC-701314229-1212757125&amp;term_occur=999&amp;term_src=title:42:chapter:82:subchapter:I:section:6903" target="_blank" rel="noreferrer noopener">That broader statutory definition</a> includes all solid wastes that may cause or contribute to an increase in mortality or certain illnesses or pose substantial hazards to human health or the environment under improper treatment, storage, transport or disposal conditions.

This definition would expand the universe of substances EPA could require TSD facilities to address as part of corrective action. EPA contends that this proposed rule will allow it to enforce corrective action requirements as intended by RCRA. By applying this broader definition to the corrective action requirement, EPA can potentially include permit terms requiring corrective action for emerging contaminants the agency has not yet identified as either hazardous constituents or hazardous wastes.

Nine New PFAS Added as Hazardous Constituents

The other proposed rule would add nine PFAS to RCRA’s list of hazardous constituents. Those nine PFAS are:

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Hexafluoropropylene oxide-dimer acid (HFPO–DA or GenX)

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If adopted, the rule would include those PFAS among the hazardous constituents that must be considered in RCRA facility assessments and potentially investigated and cleaned up as part of corrective action at RCRA TSD facilities.

While EPA presents both rules as narrow and applicable only to TSD facilities, the rules could have far-reaching future effects.

EPA expects its new PFAS rule to lead to additional corrective actions to address PFAS at TSD facilities. EPA also notes that the decision to list certain PFAS as hazardous constituents “would form part of the basis for any future action the Agency may take to list these substances as a hazardous waste.” That could have effects in RCRA and beyond. Hazardous wastes are subject to a much broader range of regulations that apply not only to TSD facilities but also to entities that generate or transport the wastes.

Moreover, hazardous wastes are automatically considered “hazardous substances” for purposes of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). This means that those who arrange for disposal of or who transport those PFAS constituents for disposal could someday find themselves liable for cleanup costs associated with those PFAS if they are ultimately listed as hazardous wastes.

The deadline to comment on the proposed rule regarding the definition of hazardous waste is March 11, 2024. The deadline to comment on the proposed rule listing nine PFAS substances as hazardous constituents is April 8, 2024.

If you have questions regarding these proposed rules or their effects, please contact Dan DeWitt, Paul Beach or a member of Warner’s Resources, Energy and Environmental Law Practice Group.

Partner

Paul H. Beach

Daniel K. “Dan” DeWitt

Resources, Energy and Environmental Law

EPA Proposes Two New Rules Regulating PFAS

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EPA Proposes Two New Rules Regulating PFAS

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