Sector weighs in on EPA’s proposed CERCLA designation for PFAS

The National Association of Clean Water Agencies (NACWA) filed comments this month in response to EPA’s proposed rule to designate Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS) as hazardous substances under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and expressed serious concerns.

NACWA says that while it supports EPA’s efforts to address PFOA and PFOS and remove them from the environment, the agency’s proposed designations fail to advance the “polluter pays” approach that EPA has espoused. Rather, NACWA says, the proposal would threaten to push huge costs and liabilities onto local communities; increase affordability concerns, particularly for disadvantaged communities; and untenably put cleanup actions ahead of critical source control and risk assessment processes. NACWA says EPA declined to consider these costs in its impact analysis, focusing narrowly on direct reporting cost while glossing over significant burdens that communities will face. 

“The simple fact is that public wastewater and stormwater systems are passive receivers of these chemicals,” says NACWA CEO Adam Krantz. “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 it strongly supports a true “polluter pays” model that places the costs of remediation on those who produced and profited from pollution. The organization added that under CERCLA’s current framework, the blanket designation of PFOA and PFOS as hazardous substances would accomplish the opposite of what EPA intends, creating a “community pays” outcome that will have disproportionate impacts on historically disadvantaged communities while in many instances letting chemical companies off the hook. 

In the case of drinking water systems, the Association of Metropolitan Water Agencies (AMWA), representing large potable water utilities, also warned of unintended consequences of a CERCLA designation for PFAS.

Under CERCLA law, any party who has contributed in any part to disposing of hazardous substances, including just trace amounts, may be held liable for remediation and costs. Therefore, AMWA says, a drinking water system that disposes of water treatment byproducts containing PFAS could be liable under CERCLA years or decades later if the disposal location becomes a Superfund site due to PFAS contamination. AMWA echoed NACWA’s sentiment, saying that this runs counter to CERCLA’s “polluter pays” principle, which AMWA has long supported. 

In addition, the Association of State Drinking Water Administrators (ASDWA) also provided comments to EPA in response to its proposal. ASDWA says it supports the intent of the action to open pathways to hold polluters accountable but opted to take a neutral position, citing “several cross-media consequences.”

ASDWA argued that CERCLA is not the appropriate regulatory tool to address PFAS contamination, stating, “CERCLA was designed to be used to address problematic sites and facilities, where there is an identifiable plume impacting groundwater, or some other type of specific source, not a problematic class of chemicals that is found everywhere.”

ASDWA also underscored the need for EPA to ensure acceptable coordination between EPA’s Office of Land and Emergency Management (OLEM) and other EPA offices such as EPA’s Office of Water.

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