Water coalition testifies on PFAS CERCLA exemption for utilities

water test sample

A coalition of national water sector associations testified before the Senate Environment & Public Works (EPW) Committee last week on the implications of listing certain per-and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The U.S. Environmental Protection Agency (EPA) is currently considering listing several PFAS, also known as “forever chemicals” for their persistence in the environment, as hazardous substances under CERCLA. 

Given the ubiquitous nature of PFAS and the strict legal liability CERCLA imposes on certain parties just for coming into contact with listed substances, drinking water, wastewater and stormwater utilities and their hundreds of millions of their customers across the United States could be forced to bear significant financial costs to address PFAS contamination — even though these utilities played no role in the manufacture or distribution of PFAS, nor have ever profited from their sale.

The Water Coalition Against PFAS consists of water groups: The Association of Metropolitan Water Agencies (AMWA); American Water Works Association (AWWA), National Association of Clean Water Agencies (NACWA), National Association of Water Companies; National Rural Water Association (NRWA); and the Water Environment Federation (WEF).

The coalition’s testimony examined the implications of listing certain PFAS as hazardous substances under CERCLA, led at the hearing by Michael Witt, General Counsel of the Passaic Valley Sewerage Commission in Newark, New Jersey. Witt said in part:

“It is through the very act of providing clean and safe water to the public that utilities are exposed to CERCLA liability. Utilities do not manufacture or profit from PFAS. Industry did that, for decades.

“In contrast, utilities passively receive PFAS via source water for drinking supplies and through wastewater discharged into sewer systems from homes and businesses. That fact, and that fact alone, exposes each and every water utility in the country to being labeled a “potentially responsible party” under CERCLA.  And it exposes millions of water ratepayers across the country to having to fund PFAS cleanups for pollution caused by private corporations. This is simply wrong. Congress must act to fix it.”

Witt’s testimony emphasized the importance of a “polluter pays” approach to dealing with PFAS that will force the companies that made and profited from the chemicals to pay for remediation – not water sector utilities and their customers. 

Tracy Mehan, executive director of government affairs for AWWA, which submitted a statement for the record at the hearing, advocated for statutory protections for water and wastewater systems.

According to AWWA, EPA and others have – in the past – proposed entering into settlements with water and wastewater systems to prevent chemical companies and other polluters from offloading their cost burden onto our ratepayers. But AWWA noted that is not a workable solution, saying those types of settlement agreements have backfired against water systems in the past.

Mehan wrote: “The only way to prevent water systems and their ratepayers from significant costs under CERCLA is to provide statutory protections, as Congress has done in the past for parties like generators of municipal solid waste, recyclers, innocent landowners and purchasers, lenders, and cleanup contractors, among others.

AWWA has endorsed S. 1430, the Water Systems PFAS Liability Protection Act, which provides
protection from financial liability under CERCLA for water and wastewater systems that comply with all
federal laws and regulations in the treatment and disposal of PFAS. We believe this is the most direct
solution to the challenges that we face. AWWA urged the EPW Committee to “support inclusion of S. 1430, or language that is substantially similar,” into any PFAS legislative package it advances this year.


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