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U.S. water utilities concerned over legal implications of designating PFAS as hazardous substances

  • U.S. water utilities concerned over legal implications of designating PFAS as hazardous substances
  • The U.S. Senate Committee on Environment and Public Works has discussed the consequences of designating PFAS as hazardous substances under CERCLA.

  • Wastewater utilities, as passive receivers, could end up paying the bill for PFAS remediation and call instead for a “polluter pays” approach.

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Recent discussions in the U.S. Senate Committee on Environment and Public Works (EPW) have shed light on the potential consequences of designating PFAS chemicals, particularly PFOA and PFOS, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, informs the New Mexico Political Report. While the designation, still to be finalized by the EPA, aims to address environmental concerns, it might result in legal liabilities for landfills and wastewater utilities as an unintended consequence.

The designation of PFOA and PFOS as hazardous substances under CERCLA is one of two rulemakings in progress that are part of the key EPA actions to address PFAS, the other being the proposed limited for six PFAS in drinking water (National Primary Drinking Water Regulation - NPDWR).

The committee discussed on how this designation could impact utilities and municipalities, highlighting the potential consequences for those deemed as passive receivers, such as wastewater utilities that receive PFAS via source water for drinking supplies and through wastewater discharged into sewer systems from homes and businesses. Passive receivers are not the initial source of PFAS contamination, but could end up paying the bill for remediation and could face litigation due to downstream contamination concerns. Besides wastewater utilities, they include a range of entities such as airports, farmers, landfills, and cities.

While the designation, still to be finalized by the EPA, aims to address environmental concerns, it might result in legal liabilities for landfills and wastewater utilities as an unintended consequence

Committee Chairman Tom Carper cited estimated costs of cleaning up PFAS from a Minnesota Pollution Control Agency’s study: PFAS chemicals can be bought for $50-$1,000 per pound, but it takes $2.7 million to $18 million per pound to remove and destroy from municipal wastewater, depending on facility size. Carper said that utilities are “understandably worried” about the legal costs they may face for contamination that others may have caused.

The Water Coalition Against PFAS, a group of the leading national water sector associations, testified about the importance of a PFAS CERCLA exemption for utilities, represented by Michael Witt, General Counsel of the Passaic Valley Sewerage Commission: “Utilities do not manufacture or profit from PFAS. Industry did that, for decades”. He noted that each and every water utility in the country could be labeled a “potentially responsible party” under CERCLA, and “it exposes millions of water ratepayers across the country to having to fund PFAS cleanups for pollution caused by private corporations”.

To fix this, passive receivers are calling for legislative measures to shield them from liability. The idea is to avoid shifting the “polluter pays” principle to a “community pays” model where the burden of compliance and cleanup is placed on ratepayers and the public. Senator Shelley Moore Capito, Ranking Member of the EPW Committee, submitted letters from more than 250 impacted entities urging that any legislation to address PFAS contamination cleanup also include liability protections for passive receivers.

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