Utilities and PFAS Liability: A Conversation with Attorney Ken Sansone

*This Q&A was originally published on TPOmag.com on March 17, 2025, and has been republished here with minor modifications.

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The recent designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) has placed drinking water and wastewater utilities in a challenging position. Despite not being the original polluters, these utilities could face significant cleanup costs.

To address this issue, a bipartisan bill—the Water Systems PFAS Liability Protection Act of 2025—has been introduced by Representatives Marie Gluesenkamp Perez (D-Wash.) and Celeste Maloy (R-Utah). The legislation aims to protect utilities that lawfully dispose of PFAS-laden byproducts from being unfairly held responsible for environmental remediation, ensuring that liability remains with the true polluters.

In this Q&A, we speak with Ken Sansone, an environmental attorney at SL Environmental Law Group, who has extensive experience holding PFAS polluters accountable and navigating CERCLA liability complexities.

Q&A with Ken Sansone

Q: In your view, does this bill provide meaningful protection for water utilities?

Sansone: Yes, the Water Systems PFAS Liability Protection Act ensures that agencies following all applicable laws for disposing of PFAS in the future will be protected from CERCLA liability.

Q: Do you believe the bill is airtight in exempting utilities from CERCLA liability, or are there potential loopholes?

Sansone: The bill intends to shield utilities, but only if they adhere to “all applicable laws at the time the activity is carried out.” If a utility violates state law or permit conditions, or acts with “gross negligence or willful misconduct,” it could lose this protection. However, most utilities are meticulous in following regulatory requirements, so compliance should ensure protection.

Q: How does this legislation align with CERCLA’s liability framework? Have past cases set any precedents that could complicate how liability is assigned?

Sansone: CERCLA is notoriously stringent—it holds parties responsible for hazardous material releases even if they were unaware of the hazards at the time. This bill recognizes that utilities should not be held to that standard for PFAS, given the widespread historical use of these substances before regulators identified them as dangerous. While CERCLA claims against utilities have been rare, the sheer scope of PFAS contamination raises concerns.

Q: If this bill passes, how could it shape future PFAS-related lawsuits?

Sansone: Despite PFOA and PFOS being officially designated as hazardous substances months ago, we have yet to see many CERCLA claims targeting utilities. Litigation has primarily focused on PFAS manufacturers, particularly those producing firefighting foam and industrial compounds. That’s likely to continue.

Q: Without legal protection, what is the worst-case financial scenario for utilities regarding PFAS cleanup?

Sansone: Utilities that don’t pursue legal claims against PFAS manufacturers risk missing out on substantial financial recovery. So far, nearly $15 billion in settlements have been secured from just four manufacturers for PFAS contamination in public drinking water systems. Without compensation, utilities will have to cover all treatment costs themselves, which could run into the tens of millions for utilities operating under strict PFAS discharge regulations.

Q: Could state-level PFAS regulations still expose utilities to legal action even if this bill passes?

Sansone: Yes. The bill’s liability protections only apply if utilities comply with “all applicable laws,” including stricter state regulations. Many states have been ahead of the federal government in setting PFAS limits for drinking water and wastewater, and utilities must stay in compliance with those laws to avoid potential legal exposure.

Q: How might PFAS manufacturers and other industries respond if this bill becomes law?

Sansone: While the bill is crucial for protecting utilities that have handled PFAS in good faith, it also indirectly benefits PFAS manufacturers by narrowing the pool of entities that could be held liable. That’s an unfortunate side effect.

Q: If you could suggest one or two amendments to strengthen this bill, what would they be?

Sansone: The language around “all applicable laws” needs to be clearer so that utilities can be confident that compliance with regulatory and permit requirements guarantees protection. Additionally, even if this bill passes, utilities will still face increased costs when disposing of PFAS-contaminated materials, as they must be treated as hazardous substances, which will significantly drive up disposal expenses.