The U.S. Environmental Protection Agency (EPA) designated two PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) on April 19, 2024.
This final rule designates two PFAS chemicals, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under CERCLA. Although the rule is meant to help ensure that polluters pay to clean up their contamination, it doesn’t offer any specific protections for water utilities and their customers.
The National Association of Water Companies (NAWC) said in a press release that the EPA designation of certain PFAS as hazardous substances under the nation’s CERCLA law will push liability from polluters to communities.
“With the EPA’s action, 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 those cleanup efforts,” said President and CEO of NAWC Robert F. Powelson in the release.
Powelson stated in the release that communities are already being forced to pay large sums of money in PFAS treatment costs to clean up the problem. He stated that the polluters who profited from the use of PFAS, and hid the effects from the public for decades, can use the new designation to push off billions of dollars of their own liability on to the same communities they’ve been taking advantage of.
“The polluters already are not paying their fair share when it comes to removing their contamination from our water supplies. 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 Powelson in the release.
Water utilities are required to adapt to the recent EPA ruling that regulates six PFAS contaminants in drinking water. This adaptation will take the form of utilizing new technology to filter out PFAS contaminants in drinking water to meet the EPA’s standards. Currently the cost of this technology falls on the utilities and their customers, allowing the source polluters to escape payment.
The EPA is issuing a separate CERCLA enforcement discretion policy that allows the EPA to focus enforcement on parties who have significantly contributed to the release of PFAS chemicals into the environment. These include parties that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities and other industrial parties.
Entities will be required to immediately report releases of PFOA and PFOS that meet or exceed the reportable quantity of one pound within a 24-hour period to the National Response Center, State, Tribal and local emergency responders. This new designation of PFOA and PFOS as hazardous substances under CERCLA enable the EPA to use one of its strongest enforcement tools to compel polluter to pay for or conduct investigations for cleanup, rather than taxpayers.
