U.S. Representatives John Curtis and Marie Gluesenkamp-Perez have introduced the Water Systems PFAS Liability Protection Act in the House to protect water utilities against the risk of incurring PFAS cleanup liability. The proposed bill is a companion bill to Senate legislation introduced by Sen. Cynthia Lummis last year.
“This bipartisan legislation will help ensure policies to hold PFAS polluters accountable aren’t having unintended consequences on water utilities and ratepayers, especially in small and rural communities”, said Rep. Gluesenkamp Perez.
Last week the U.S. EPA designated two widely used PFAS chemicals, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), known as Superfund. The designation will address PFOA and PFOS contamination by enabling the investigation and cleanup of these harmful chemicals and ensuring that leaks, spills, and other releases are reported.
The EPA’s final rule follows recent discussions in the U.S. Senate Committee on Environment and Public Works (EPW) on the potential unintended consequences of the designation, as it might result in legal liabilities for landfills and wastewater utilities as passive receivers of the contamination.
The Water Coalition Against PFAS, a group of the leading national water sector associations, has applauded the introduction of the new bill: “Drinking water and wastewater systems are already investing billions of dollars to address PFAS. This legislation would prevent polluters from adding to this burden by unjustly attributing their own cleanup liability, as well as untold millions in legal fees, to water and wastewater customers throughout the country.”
The EPA is issuing a separate CERCLA enforcement discretion policy to make clear that enforcement will focus on those who significantly contributed to the release of PFAS chemicals into the environment, including parties that have manufactured PFAS or used them in the manufacturing process. In this regard, the EPA has stated that its enforcement policy “will provide additional clarity on the agency’s intent not to pursue certain parties such as farmers, municipal landfills, water utilities, municipal airports, and local fire departments, where equitable factors do not support seeking CERCLA cleanup or costs.”
But the matter is not clear to all stakeholders. In a statement where it supports the legislation being considered in the House and Senate, the National Association of Water Companies (NAWC) said the EPA designation of certain PFAS as hazardous under CERCLA will push liability from polluters to communities, arguing that water utilities that are doing their jobs to protect the health and safety of their customers and the environment are exposed to billions of dollars more in liability because of their cleanup efforts. “Without Congressional action, this EPA designation means the corporations that profited from the use and manufacture of PFAS can sue water and wastewater utilities that have been treating for PFAS in order to shift cleanup costs to the communities those utilities serve”, said Robert F. Powelson, president and CEO of NAWC.
