Designation of PFAS as Hazardous Substance / Wastewater CERCLA – Exemption for Drinking Water Services: American Water Works Association Proposed Amendment | Mitchell, Williams, Selig, Gates & Woodyard, PLLC

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The American Water Works Association (“AWWA”) sent a letter on July 19 to the Chairman and Senior Member of the Rules Committee of the United States House of Representatives, asking him to support an amendment (“Amendment 18” ) the PFAS Action Bill (“HR 2467”).

Amendment 18 would address the potential liability of drinking water and wastewater utilities if PFAS are designated as a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).

HR 2467 would require the United States Environmental Protection Agency (“EPA”) to immediately list PFAS, PFOS, and PFOA (collectively “PFAS”) as hazardous substances under CERCLA. It would also require these chemicals to be listed as hazardous air pollutants under the Clean Air Act.

PFAS have been used in various industrial applications in consumer products such as:

  • Fabrics for furniture
  • Paper packaging for food and other materials resistant to water, grease or stains
  • Fire fighting aerodromes
  • Use in several industrial processes

They have been described as persistent in the environment and resistant to degradation.

The designation of PFAS as a CERCLA hazardous substance would trigger certain corresponding requirements such as:

  • Application of potentially liable party liability categories (i.e. current owner or operator, former owner or operator [in certain circumstances], carrier [in certain circumstances], and generators)
  • Hazardous Substance Release Reporting Requirements (if reportable quantities are released)

Amendment 18 would exempt public drinking water and wastewater utilities from the liability of PFAS, except where these utilities have rejected chemicals as a result of gross negligence or willful misconduct.

The letter of July 19 states in part:

If PFAS compounds are to be designated as hazardous substances under CERCLA, we urge Congress to maintain responsibility for the cleanup of PFAS with the manufacturers and formulators of PFAS. Congress should not hold community drinking water and wastewater facilities responsible for PFAS contamination caused by PFAS products that the country now realizes should not have been allowed to be marketed to states -United.

In the case of water utilities, AWWA notes that once PFAS is removed from the water, it must be removed. The letter argues that a water utility that properly disposes of residues containing PFAS (in a manner consistent with applicable laws) should not be held liable under CERCLA for future costs associated with cleaning up PFAS.

As for the wastewater services, it should be noted that they receive and treat water from various sources. Such water can contain PFAS compounds. Concerns are expressed that despite the fact that the utility is not the source of PFAS, it could be held accountable for the treatment of these substances. Similar concerns are expressed about biosolids generated by a wastewater treatment plant that are applied to soil as fertilizer.

A copy of the July 19 letter can be downloaded here.

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