RCRA Rules Face Hazardous Times

In an executive order issued February 19, 2025, President Donald Trump instructed federal agency heads to “initiate a process to review all regulations subject to their sole or joint jurisdiction” for purposes of “rescinding unlawful regulations and regulations that undermine the national interest.”[1] In this article, we discuss one recent rule and two proposed rules under the Resource Conservation and Recovery Act (RCRA) that may be headed to the waste bin.

Coal Combustion Residuals. The first regulatory action is the coal combustion residuals (CCR) rule adopted May 8, 2024, which imposed stricter operating and closure obligations on CCR landfills, impoundments and beneficial reuse. In light of the Trump administration’s pivot toward coal and the regulated community’s concerns with the CCR rule, it is a candidate for at least partial rescission.

The regulatory and judicial proceedings around the CCR rule span more than a decade of controversy. The current version became effective on November 24, 2024,[2] and was promptly challenged in multiple lawsuits now consolidated in City Utilities of Springfield v. Environmental Protection Agency in the D.C. Circuit.[3] The rule, petitioners assert, placed onerous requirements on the beneficial use of CCR for “numerous purposes, including embankment construction and protection, dam construction, as structural fill, and for road construction and stabilization.”[4] Petitioners also assert that the rule “operates retroactively because it applies new closure standards, definitions, and other requirements to CCR landfills and impoundments that lawfully completed closure years before the Rule became effective.”[5]

If the U.S. Environmental Protection Agency (EPA) does decide to rescind some or all of the CCR rule, it will have to contend with the D.C. Circuit’s decision about the previously-effective CCR rule in Utility Solid Waste Activities Group v. Environmental Protection Agency (USWAG).[6] In USWAG, the court found it arbitrary and capricious that the EPA had chosen not to regulate certain legacy impoundments even though the legacy impoundments posed the same or greater risks as the regulated impoundments.[7] If the EPA now decides to rescind any part of the CCR rule, it will have to explain why the rescission will not create the risks that USWAG required it to address.

Including PFAS as Hazardous Constituents. The second two regulatory actions relate, directly or indirectly, to per- or polyfluoroalkyl substances (PFAS). The first of these is the February 8, 2024, proposal to include nine PFAS in the set of RCRA “hazardous constituents” in Appendix VIII of 40 C.F.R. Part 261.[8] This proposal was the most recent regulatory measure by the prior administration addressing PFAS contamination, which included listing two PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act, adopting maximum contaminant levels for six PFAS under the Clean Water Act, listing more than 200 PFAS as toxic chemicals under the Emergency Planning and Community Right-to-Know Act and listing more than 1,400 PFAS under the Toxic Substances Control Act.

The EPA proposed the rule to facilitate regulation of the nine PFAS as hazardous wastes, since the EPA can only list new hazardous wastes if they contain hazardous constituents. Listing PFAS as hazardous waste could subject PFAS contamination — which may be present in everything from drinking water to sewage sludge to discarded commercial products to firefighting foams — to stringent hazardous waste requirements.

The proposed rule’s fate will remain uncertain until the EPA resolves its views about PFAS, however. On the one hand, EPA Administrator Lee Zeldin pledged to regulate PFAS as a “top priority” during his confirmation hearing.[9] On the other hand, as part of the administration’s broader scrutiny of EPA regulations, at least one potential PFAS regulation — the Clean Water Act effluent standards for certain PFAS manufacturers — was withdrawn by the January 20, 2025, executive order on “Regulatory Freeze Pending Review.”

Definition of Hazardous Waste for Corrective Action. The second PFAS-related regulatory action is the EPA’s proposed clarification of the definition of hazardous waste for purposes of corrective action, which the EPA proposed on the same day as the RCRA PFAS rule.[10] This rule seems quite technical, but its impacts could be broad.

As background, RCRA has two definitions of “hazardous waste”: the statutory one in 42 U.S.C. § 6903(5) and the regulatory one in 40 C.F.R. § 261.3. The statutory definition extends to a range of substances including anything that “may ... pose a substantial present or potential hazard to human health or the environment” when improperly managed. The regulatory definition is narrower, extending only to those wastes enumerated on lists or having enumerated properties.

In the corrective action rule, the EPA proposed, among other things, that RCRA’s corrective action requirements would apply to all hazardous wastes, both statutory and regulatory.[11] This means that, should scientists discover that a widely used substance (such as PFAS) has potential toxicity when improperly managed, facilities with RCRA permits might suddenly find themselves with unanticipated corrective action obligations. Since this rule was prompted at least in part by the EPA’s desire to regulate PFAS, it may have the same fate as the proposed rule naming PFAS as hazardous constituents.

If you would like more information on these topics, please contact any of the authors or your Paul Hastings contact.