RCRA Rules

Our series on the impact of the election on per- and polyfluoroalkyl substances (PFAS) policy takes us to the Senate, where Senator Shelley Moore Capito (R-WV) indicated in a hearing that the Senate Committee on Environment and Public Works (which she will chair) will continue to pursue PFAS. Describing recent regulation of PFAS as “well intentioned” but flawed, Sen. Capito advocated for “regulatory approaches that balance scientific rigor with practical feasibility.” The incoming administration’s approach towards PFAS regulation is also reflected in President-elect Donald Trump’s selection of his emerging cabinet. For instance, Lee Zeldin, slated as next head of the Environmental Protection Agency (EPA), is known to have supported broad legislation to strengthen PFAS regulation. Further, as expected, we saw state regulators preparing to ramp up efforts to regulate PFAS themselves in anticipation of a less collaborative EPA under President-elect Trump. New Mexico, for instance, plans to file a lawsuit against the Agency if it fails to regulate PFAS under the Resource Conservation & Recovery Act (RCRA), as the Biden administration proposed in response to a petition by the state.

Much will be written about the impact of the election on per- and polyfluoroalkyl substances (PFAS) policy over the coming months (or even years), and we imagine many of our updates over that time will analyze this, as well. These impacts may present in the form of continued budgetary and technical challenges for the Environmental Protection Agency (EPA) such as those that led to a delay in implementation of the PFAS Reporting Rule under the Toxic Substances Control Act (TSCA). That said, given that PFAS is largely seen as a bipartisan issue (as evinced by the first Trump administration’s introduction of a PFAS Action Plan in 2019), we do not expect wholesale changes to existing PFAS rules, though the second Trump administration may ease regulatory thresholds and reporting deadlines relating to PFAS. As a consequence of federal developments, we expect state activity to remain steady, if not increase, in response to concerns that federal implementation may lessen. Unfortunately, this may mean the patchwork of state regulations and laws around PFAS may grow, imposing significant compliance burdens on regulated entities (which, ironically, may lead the federal government to increase its involvement).

On May 8, 2024, the U.S. Environmental Protection Agency (EPA) published its final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

In February 2024, the U.S. Environmental Protection Agency (EPA) proposed two rules under the Resource Conservation and Recovery Act (RCRA). The first modifies RCRA’s definition of “hazardous waste” as it applies to cleanups at permitted hazardous waste facilities and the second adds nine per- and polyfluoroalkyl substances (PFAS) to the RCRA list of “hazardous constituents.”