The U.S. Environment Protection Agency (EPA) vowed last week to protect “passive receivers” of some PFAS contaminants while retaining their designation as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).
CERCLA imposes broad, retroactive, and potentially costly strict liability on those who released hazardous substances to the environment. In some cases, this liability can attach to entities that did not manufacture or generate the substance but received it in feedstocks, products, or waste. Such entities are sometimes referred to as “passive receivers.”
In July of 2024, EPA formally designated two of the most common PFAS — perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) — as hazardous substances under CERCLA. The move puts drinking water and wastewater utilities at risk of being liable for a portion of environmental cleanup costs after legally disposing of water treatment byproducts or biosolids containing the contaminants. Proponents of protecting water systems from CERCLA liability argue the current situation allows the polluters to avoid responsibility.
Last week, in a press release, EPA said it would retain the hazardous substances designation for PFOA and PFOS, but suggested a statutory fix to protect passive receivers from liability, calling it the best, long-term solution to the issue. The agency said it stands ready to provide technical assistance to Congress as requested on the issue.
“When it comes to PFOA and PFOS contamination, holding polluters accountable while providing certainty for passive receivers that did not manufacture or generate those chemicals continues to be an ongoing challenge,” said EPA Administrator Lee Zeldin. “I have heard loud and clear from the American people, from Congress, and from local municipalities about this particular issue. EPA intends to do what we can based on our existing authority, but we will need new statutory language from Congress to fully address our concerns with passive receiver liability. The Trump Administration is fully committed to ensuring all Americans have the cleanest air, land, and water.”
The National Association of Clean Water Agencies (NACWA) called the decision by EPA to support statutory protections for passive receivers a win for the sector. The Association of Metropolitan Water Agencies said the comments represent EPA’s most significant endorsement of statutory passive receiver protections to date.
There has also been legislation proposed in recent years, namely the Water Systems PFAS Liability Protection Act, that would protect water systems from CERCLA liability — including increased costs associated with litigation and potential settlements against PFAS manufacturers and users — when they follow all applicable laws for disposing PFAS.
In February, the bipartisan Water Systems PFAS Liability Protection Act of 2025 was sponsored by Reps. Marie Gluesenkamp Perez (D-Wash.) and Celeste Maloy (R-Utah). It is identical to bipartisan legislation previously introduced in the 118th Congress by now-Senator John Curtis (R-Utah). The bill has widespread support from water sector groups including NACWA, AMWA, AWWA, WEF and the National Association of Water Companies, representing private and investor-owned water systems.
“The Water Systems PFAS Liability Protection Act will ensure that polluters are held responsible for cleaning up the PFAS they introduced into the environment, rather than water utilities and their ratepayers,” said American Water Works Association (AWWA) CEO David LaFrance.
“Water utilities and their customers should not be forced to pay remediation costs for issues they did not create,” Ralph Exton, Executive Director of the Water Environment Federation (WEF),” has also said. “These utilities are involuntary receivers of PFAS and did not create or profit from PFAS. “However, without congressional action, they could be forced to bear immense financial and operational challenges.”
Sources: EPA, NACWA, AMWA, AWWA, WEF
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