New CERCLA Rulings for PFAS Chemicals: Understanding Impacts to Utilities

On April 19, the U.S. Environmental Protection Agency (EPA) announced finalization of a rule designating two of the most-studied PFAS (per- and polyfluoroalkyl substances), perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), as hazardous substances under the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA). Jacobs Global Principal for PFAS & Emerging Contaminants Scott Grieco provides a few clarifications on the CERCLA ruling:

1. The reporting threshold under CERCLA is release of PFOA or PFOS greater than one pound per 24 hours. For many utilities discharges, this threshold is not an issue. For example:

1. This ruling defines PFOA and PFOS as "CERCLA Hazardous Substances" and does not designate these compounds as "Hazardous Waste." As such, this designation does not require treatment system residuals to be treated in any particular fashion, nor disposed of at any particular type of landfill. The designation also does not restrict, change, or recommend any specific activity or type of waste at landfills.
2. CERCLA is a discretionary statute, and decisions are made on a site-by-site basis based on whether any releases from the site pose unacceptable risk to human health or the environment. EPA has also developed an enforcement discretion policy that will reflect the agency's enforcement priorities to "focus on holding responsible those who significantly contribute to the release of PFAS into the environment." EPA "does not intend" to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA, including: community water systems and publicly owned treatment works, municipal separate storm sewer systems, and publicly owned/operated municipal solid waste landfills, among others.

However, along with the enforcement discretion (where they do not intend to pursue utilities, it does not say never) there is also no guarantee from lawsuit protection, just an intent of EPA to request that major Potentially Responsible Party (PRP) waive their right to sue. And EPA's enforcement discretion cannot protect against 3rd party non-PRP direct lawsuits (i.e., citizen groups or environmental groups).

1. For utilities to an have exemption from CERCLA liability, it must be legislated. A companion House bill to the Senate legislation providing statutory protection for water utilities was introduced last week. However, Senate action is stalled as various environmental special interest groups are opposed to it. This is why the Water Environment Federation, National Association of Clean Water Agencies, American Water Works Association, etc. have put so much effort into getting water utilities to directly contact Sen. Schumer's office to pressure action.

Item 4 is of vital importance; multiple industry organizations are helping utilities to advocate now for legislation to exempt utilities from CERCLA and provide further protection from 3rd party lawsuits. Here's a link to information on sending letters to local Senators as well as to Senator Schumer to support legislative CERCLA exemption for utilities. Jacobs can assist clients as needed with any other aspects of CERCLA and PFAS treatment.