contamination, while the list of sourc-es
may continue to grow. Accordingly,
regulating PFAS pursuant to RCRA un-der
the current circumstances could be
a double-edged sword at best for water
purveyors. Once a substance is a hazard-ous
waste for RCRA purposes, it is also
automatically designated a hazardous
substance under the Comprehensive En-vironmental
Response, Compensation,
and Liability Act (CERCLA), or Super-fund.
While this provides an additional
avenue for water purveyors to seek cost
reimbursement, CERCLA litigation can
30 SOURCE winter 2022
be long and costly, without certainty as to
the result.
EPA is proceeding on a parallel path
to regulate PFOA and PFOS as hazardous
substances under CERCLA. On January
10, 2022, EPA sent a proposed rule to
the White House Office of Management
and Budget (OMB) to designate PFOA
and PFOS as hazardous substances un-der
CERCLA. The OMB’s review usu-ally
takes 90 days, but it can sometimes
be shorter or extended an additional 30
days. After the OMB completes its re-view,
EPA will then publish the proposed
rule for public comment. Once the rule
is finalized, it will result in release re-porting,
cost recovery, and contribution
claims. As EPA explained in its October
2021 PFAS Roadmap, “Such designations
would require facilities across the coun-try
to report on PFOA and PFOS releas-es
that meet or exceed the reportable
quantity assigned to these substances.”
In addition, at existing Superfund sites
(including sites where a final remedy is
underway), EPA can require that the sites
be investigated for PFOA and PFOS. EPA
could also require that existing remedial
strategies be modified to address these
contaminants in soil or groundwater.
Even at sites where remedial measures
have been completed, EPA could reopen
the sites and require the remediation of
PFOA and PFOS.
Thus, regulating PFAS under RCRA
and/or CERCLA would help protect
source water from PFAS contamination
and allow water purveyors to seek recov-ery
of their cleanup and disposal costs for
treating and disposing of PFAS. Howev-er,
water suppliers themselves might
be liable under RCRA and CERCLA for
transporting water containing PFAS, un-less
they are provided an exemption for
PFAS from third party sources which
end up in their water storage, transporta-tion,
and/or treatment systems. S
1On November 15, 2021, AWWA jointly filed with
the Association of California Water Agencies, the
Association of Metropolitan Water Agencies and the
Western Urban Water Coalition an amicus brief in
support of defendant City of Vacaville’s Petition for
Rehearing En Banc.
Tim Miller has been practicing
environmental law for 25 years.
He is currently general counsel
of Suburban Water Systems, lo-cated
in Covina, California.
The CA-NV Section AWWA PFAS Work-group
is a section-wide special interest work-group
established in 2020 that provides a
venue for drinking water community stake-holders,
regulators and subject matter experts
willing to provide support on topics related to
per- and polyfluoroalkyl substances (PFAS)
(e.g., treatment, regulations, litigation, ana-lytical
methods, research, human health tox-icity,
etc.).
PFAS AS HAZARDOUS WASTE
/nationalstoragetank.com
