Decoding CERCLA's PFAS Ruling: The Impact on Wastewater Utilities

As the milestones in the EPA’s PFAS Strategic Roadmap are completed, including anticipated finalization of national PFAS regulations, clean water agencies’ leaders may be wondering how the new rules will affect them and what they can do to prepare. Once enacted, the EPA’s latest regulatory developments are expected to impact not only drinking water providers but also the publicly owned treatment works (POTWs) that manage wastewater across the country.  

The EPA has announced its intent to designate the common PFAS compounds PFOA and PFOS as “hazardous substances” under CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act), more commonly known as the Superfund. The EPA hazardous material designation would increase transparency around the releases of these chemicals to help hold polluters accountable for contaminations. In addition, the EPA has also proposed adding PFOA, PFOS, and seven more PFAS compounds to the list of “hazardous constituents” under the Resource Conservation and Recovery Act, or “RCRA.”

The combined effects of these regulations would have a significant impact on POTWs, creating a financial burden for many systems. By staying up to date on regulatory developments and exploring potential treatment options and funding sources, POTWs can be ready for the changes to come.

Effects of CERCLA and RCRA Designations for POTWs

If PFOA and PFOS are designated hazardous substances or constituents, the effects will be swiftly felt in all industries subject to EPA regulations. The designation would allow EPA, state regulators, and private citizens to hold dischargers and others responsible for PFOS and PFOA contamination, even if they had no role in creating it. This could result in legal implications for clean water agencies. Recognizing that POTWs are not producers of PFAS chemicals, EPA has announced it will instead focus its enforcement efforts on manufacturers and producers of PFAS. However, this unofficial policy could change at any time, and does not exempt POTWs from being legally pursued by private citizens and state governments. That would require Congress to amend CERCLA to exempt POTWs and other passive receivers of PFAS from CERCLA requirements, which does not appear to be on the horizon.

There are technologies on the market that remove and destroy PFAS, which can keep wastewater plants compliant with CERCLA and other regulatory requirements, reduce contamination risk, and protect the health of communities and their surrounding environments. However, treatment costs and the potential legal liability could disrupt utility and city budgets, making the proper steps to remove contamination unattainable for often underfunded POTWs.  

How a Wastewater District is Holding PFAS Polluters Accountable

As the public and regulators shift their attention towards wastewater, many systems are looking to retain counsel and file a lawsuit against PFAS manufacturers to seek cost recovery for their PFAS contamination and treatment. These systems have chosen to rely on specialized legal counsel who can advise them based on their utility’s unique needs. This approach proved effective in the case of drinking water suppliers, whose lawsuits against PFAS manufacturers over the past several years resulted in two proposed settlements, from 3M Company and the DuPont group of companies, providing a total of more than $12 billion to clean up PFAS in drinking water.

York Sewer District in Maine, for example, discovered PFAS in its wastewater system while testing its biosolids as part of the Maine Department of Environmental Protection’s new requirements. The District determined that household items, such as non-stick cookware, cleaning, and stain-resistant products were the source of contamination—rather than local drinking water supplies, where PFAS has never been detected.

Concerned about the impact of these chemicals to the community’s infrastructure and finances, in late 2023, the District hired SL Environmental Law Group to sue 3M, DuPont, and other PFAS manufacturers in order to recover the costs the District would incur as a result of PFAS in its effluent and biosolids. The aim of the lawsuit, which is part of the same ongoing AFFF multi-district litigation against PFAS manufacturers that produced the drinking water settlements, is to recover funds to keep the District in regulatory compliance and protect public health without financially burdening its ratepayers.

How to Take Action Now

Holistic PFAS regulations aim to reduce the harm these chemicals can cause and have inflicted for generations. But the encompassing approach to removing PFAS from the environment has substantial financial implications for water and wastewater providers nationwide. While some federal and state funding may be available to these providers, industry cost estimates reveal these sources will likely be insufficient. Litigation remains an attractive funding route for a number of wastewater utilities, if they will become burdened by additional testing, reporting, and treatment requirements, and potentially lawsuits from private parties and state governments.

To prepare for this regulatory shift, wastewater operators can begin combating PFAS contamination in their community by testing effluent and biosolids for PFOA and PFOS. Testing data gives utilities the information they need to begin their journey to identifying PFAS sources in their community, working with regulators and local industry to find short- and long-term pretreatment solutions, and substantiating litigation claims against big-name polluters responsible for the contamination.

About SL Environmental Law Group

SL Environmental Law Group, P.C. is a firm dedicated to helping public water and wastewater systems across the country recover the costs of cleaning up contamination. The firm currently represents about 200 clients in the ongoing PFAS MDL, seeking to help each one recover cleanup costs and hold manufacturers accountable for contamination.