PFAS Regulations, CERCLA Liability: Minimizing Costs for Utilities

Regulatory developments at both the federal and state levels are increasing the pressure on wastewater utilities dealing with PFAS. Maine, Connecticut, and Michigan have already enacted laws that limit utilities’ options for the land application of sludge and biosolids, driving up costs significantly, and threatening landfill capacity. Other states have implemented monitoring programs for PFAS in biosolids and/or wastewater, signaling that tighter restrictions may be on the horizon in those places as well.

Meanwhile, the U.S. EPA’s designation of PFOA and PFOS as hazardous substances under CERCLA will require wastewater systems to report non-exempt releases of one pound or more within a 24-hour period. Complicating matters further, utilities with reason to suspect their wastewater effluent or biosolids contain PFAS may be obligated to conduct additional monitoring for releases. Even systems with releases below the reporting threshold may be at risk of liability, especially from third-party lawsuits that may point to them as contributors to other agencies’ PFAS cleanup costs. In addition to regulatory issues, the public may look to blame wastewater utilities and other passive receivers for contributing to PFAS contamination, when in reality they neither produced nor made any conscious decision to accept PFAS into their treatment plants. Wastewater managers are caught in the middle – unable to stop receiving PFAS into their facilities from various waste streams but faced with demands to limit releases while keeping budgets low.

Although wastewater systems are not responsible for PFAS contamination, many are already experiencing its financial impacts. The rising costs of biosolids disposal, monitoring, and even infrastructure improvements to remove and destroy PFAS are forcing utility leaders to make difficult budget decisions. Because PFAS is so widespread and challenging to mitigate, the costs utilities and ratepayers have seen so far may be just the tip of the iceberg. These concerns have led some utilities to seek innovative strategies that shift costs to the product manufacturers ultimately responsible for PFAS contamination.  

Across the country, wastewater systems have filed lawsuits against these large-scale PFAS manufacturers, seeking to protect their users and ratepayers from current and anticipated future expenses. When evaluating their potential costs and recovery options, utility decision-makers may have questions such as:

• What is the current state of regulation for PFAS in wastewater and biosolids?

• How will wastewater utilities be affected by the PFAS CERCLA designation?

• Are there advantages to acting now rather than waiting to see how regulatory development or litigation continues?

To help answer these questions, we’ve created a video featuring a Q&A session that covers many common inquiries regarding PFAS regulations and cost recovery strategies. You can view that video by clicking here

As the regulatory landscape continues to change, it's vital to consult with experienced legal counsel to tailor a strategy that addresses your utility's specific challenges. Partnering with a knowledgeable water contamination litigation firm can help navigate the complexities of PFAS issues, from identifying risks to pursuing optimal outcomes for your utility and its ratepayers.

If you have further questions about PFAS and its implications for your utility, you can schedule a free consultation with our senior partner, Ken Sansone.