NACWA opposes EPA’s proposed PFOA, PFOS designations

The National Association of Clean Water Agencies (NACWA) filed on open comment opposing the U.S. Environmental Protection Agency’s (EPA’s) proposed rule to designate two key PFAS chemicals as hazardous substances.

In August 2022, EPA proposed to designate perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) as hazardous substances under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The rulemaking would require facilities to report any releases of the substances that exceed a certain quantity.

“The simple fact is that public wastewater and stormwater systems are passive receivers of these chemicals,” says Adam Krantz, CEO of NACWA, in a press release. “Public clean water utilities neither produce nor profit from them. But EPA’s current proposal unnecessarily risks shifting the cost for cleaning them up from a ‘polluter pays’ model to a ‘community pays’ model where local clean water ratepayers will be stuck with the bill. It is critical that EPA address this shortcoming before the proposal is finalized to ensure local utilities are not on the hook.”

NACWA says that, while it supports efforts to address PFOA and PFOS and remove them from the environment, the proposed designations fail to advance an approach that makes polluters pay for cleanup activity. Instead, says the association, the proposal threatens to push costs and liabilities onto local communities and puts cleanup actions ahead of source control and risk assessment processes.

“EPA has yet to leverage the tools available to help stem the flow of PFAS into public wastewater and stormwater systems,” says the open comment. “EPA has not set technology-based limits to control industrial PFAS discharges, implemented source control measures to limit the ongoing introduction of these substances into the environment, or promulgated reliable and repeatable analytical methods to quantify PFAS compounds in media other than drinking water.”

The association says that, under CERCLA’s current framework, the blanket designation of PFOA and PFOS as hazardous substances would create an outcome where communities pay while chemical companies would be off the hook.

NACWA instead suggests that EPA should support Congress in enacting a narrowly tailored CERCLA PFAS exemption for public clean water agencies that are acting in accordance with all applicable laws.

The association also lists other recommendations for EPA in its comments, including:

• Utilize its authority to focus on source control to reduce the introduction of PFAS into the environment
• Provide comprehensive account for the potential costs of the designation, including cleanup costs.
• Formalize its stated position that the use of biosolids as fertilizer would not be a ‘release’ subject to CERCLA liability.