Currently, per- and polyfluoroalkyl
substances (PFAS)-containing wastes
are not subject to RCRA because PFAS
are not constituents that can make waste
hazardous. EPA announced on October 18,
2021, that it would initiate the rulemaking
process to add perfluorooctane sulfonate
(PFOS), perfluorooctanoic acid (PFOA),
perfluorobutane sulfonic acid (PFBS)
and hexafluoropropylene oxide (HFPO)
dimer acid and its ammonium salt (more
commonly known as “GenX”) to the list
of RCRA Hazardous Constituents. To
be clear, the EPA said it would evaluate
the data to determine if those PFAS
compounds should be constituents of
concern listed on Appendix VIII of Part
261, which is one entrance into RCRA’s
mind-numbing web. That does little to
clarify the benefits to, or obligations
of, water utilities that have PFAS-contaminated
source water, or wastewater
utilities that process PFAS-containing
effluent from their collection system. If
one or more of PFOA, PFOS, PFBS and/
or GenX end up being a constituent that
makes a waste toxic, which is one of
four characteristics that make a waste
hazardous, that regulatory action will
have multiple implications for water
and wastewater utilities, with differing
results.
Once PFAS-containing waste is regu-lated
as hazardous, less PFAS should en-ter
the environment, reducing the poten-tial
28 SOURCE winter 2022
for PFAS-contaminated source water,
with the accompanying benefits to potable
water quality. To the extent, however, that
PFAS has already contaminated source
water and water purveyors are treating
water sources to remove PFAS, spent filter
media that contains regulated PFAS com-pounds
will also be a regulated hazardous
waste. Properly disposing of hazardous
waste increases the operating and main-tenance
costs for those utilities and adds
time-consuming administrivia to staff
workloads, all to the detriment of custom-er
water rates.
Adding further turbidity to this
situation (pun intended), regulating
PFAS compounds according to RCRA
isn’t necessarily the be all/end all
for preventing PFAS contamination
for source water. To avoid making
wastewater treatment overly complex,
effluent from publicly owned treatment
works might not be subject to the full
gamut of RCRA regulations. Thus,
publicly owned treatment works’
(POTW) effluent containing regulated
PFAS compounds could be discharged to
surface water upstream of a surface water
treatment plant intake or could infiltrate
a downstream alluvial aquifer, still
resulting in source water contamination.
The threat source water contaminated
with RCRA-regulated substances poses to
water purveyors was heightened in 2021
with the 9th Circuit Court of Appeals opin-ion
Granular activated carbon (GAC) is currently the most
accepted treatment technology for PFAS removal.
in California River Watch v. City of Va-caville.
In that case, a split panel from the
9th Circuit Court of Appeals determined
that a municipal water system could be
deemed to be transporting hazardous
waste (transporting hazardous waste is
part of RCRA’s cradle-to-grave scheme) by
distributing source water from an aquifer
contaminated with a RCRA-regulated sub-stance,
even if the water otherwise meets
all state and federal drinking water stan-dards
(i.e., Maximum Contaminant Levels
or MCLs). If the decision of the 9th Circuit
withstands further litigation,1 adding PFAS
compounds that are known to be present in
source water to the RCRA list will further
complicate matters for water purveyors al-ready
working to address the complexities
of PFAS in source water. At the same time,
this could also simplify the existing regula-tory
landscape, as water purveyors would
not need to wait for an MCL before having
a regulatory mandate to remove PFAS be-fore
source water enters the distribution
system. However, it’s unclear if RCRA reg-ulation
meets the criteria for drinking wa-ter
grants, State Revolving Fund Drinking
Water Program loans and other incentiv-ized
drinking water funding.
While some of the costs for wellhead
treatment or surface water treatment
plant upgrades can be offset by the $10
billion allocated in the Infrastructure
Investment and Jobs Act, that $10 bil-lion
is unlikely to address known PFAS
PFAS AS HAZARDOUS WASTE