On Aug. 18, the U.S. Court of Appeals for the D.C. Circuit upheld the U.S. Environmental Protection Agency’s (EPA) designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund.
EPA first designated PFOA and PFOS as hazardous substances under CERCLA in April 2024.
Under the rule, entities are 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.
The final rule also means that federal entities that transfer or sell their property must provide notice about the storage, release or disposal of PFOA or PFOS on the property and guarantee that contamination has been cleaned up or, if needed, that additional cleanup will occur in the future.
Upon finalizing the rule in April 2024, EPA also released a corresponding enforcement discretion policy memo stating that the agency intends to focus enforcement on parties who significantly contributed to the release of PFAS chemicals into the environment, including parties that have manufactured PFAS or used PFAS in the manufacturing process, federal facilities and other industrial parties. EPA said it intended “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.
At the time, EPA said the designation enabled the agency to use one of its strongest enforcement tools to compel polluters to pay for or conduct investigations and cleanup, rather than taxpayers.
However, the Water Coalition Against PFAS, an alliance of drinking water and wastewater sector organizations said it was disappointed in the CERCLA designation, saying the move would still allow polluters to skirt responsibility for cleanup. The group added that despite EPA’s declaration not to target water agencies for PFAS clean-ups, water and wastewater systems and ratepayers are still exposed to potential costs burdens.
“CERCLA by design places those same utilities at risk of lawsuits initiated by third parties – including the polluters themselves – intended to foist the costs of cleaning up PFAS pollution onto the very public that is already having to endure the human health and environmental burdens caused by these ‘forever chemicals,’” said Adam Krantz, CEO of the National Association of Clean Water Agencies (NACWA), at the time.
The American Water Works Association (AWWA), on Aug. 18, issued the following statement on its concerns about the decision, although AWWA was not part of the litigation.
“AWWA believes that polluters should pay for environmental cleanups, not the innocent communities that have been impacted. The companies and industries that manufactured, used, and released PFAS should bear the cost of remediation; water utilities and the consumers who pay for water service should not.
“While CERCLA is designed to force polluters to clean up contaminated sites, we remain concerned that water utilities – as passive receivers of PFAS — could be exposed to significant legal and financial liability under the act. Today’s decision underscores the urgent need for Congress to grant a specific exemption for water and wastewater utilities, protecting them from claims brought by potentially responsible parties such as PFAS manufacturers. Such an exemption would help ensure CERCLA is used as intended and allow water utilities to use their limited financial resources to address aging infrastructure, cybersecurity, and many other pressing needs, while keeping water services affordable.”
Source/s: U.S. EPA; Water Coalition Against PFAS; AWWA
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