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PFAS

Background

Publicly owned clean water utilities are “passive receivers” of PFAS, since they do not produce or manufacture PFAS but de facto “receive” these chemicals through the raw influent that arrives at the treatment plant. This influent can come from domestic, industrial, and commercial sources and may contain PFAS constituents ranging from trace to higher concentrations, depending on the nature of the dischargers to the sewer system.

Although the influent is not generated by the utility, the utility is responsible for treating it under the Clean Water Act. Municipal clean water utilities were not traditionally designed or intended with PFAS treatment capabilities in mind. Today, there are no cost-effective techniques available to treat or remove PFAS for the sheer volume of wastewater managed daily by clean water utilities.

NACWA’s advocacy priorities on PFAS include urging source control, empowering the Clean Water Act pretreatment program, preventing public utilities and their customers from unintended liabilities and costs of PFAS management, and advancing research to support sound rulemaking that protects public health and the environment.

Potential Concerns for Clean Water Agencies

Public clean water utilities receive and treat a broad range of influent from heterogenous sources including domestic, industrial, and commercial sources. Given the ubiquity of PFAS compounds, it is highly likely all POTWs are receiving some level of PFAS in their influent, with significant variation across communities.  These PFAS chemicals can then be present in both POTW effluent and in biosolids, presenting potential legal and regulatory liability for public clean water utilities.   

However, wastewater utilities were designed prior to awareness of PFAS concerns and thus not designed to treat or remove PFAS chemicals. Because new standards could mandate costly investments and/or impose costly liability for utilities which did not generate or profit from PFAS, NACWA’s position is that the manufacturers of these chemicals should bear responsibility for the costs of clean up and treatment – a “polluter pays” model.

One of the most challenging current aspects of the PFAS discussion is that there are no uniform, approved testing methods or established risk thresholds.  Science has not yet determined which PFAS compounds and at what levels pose actual risk to human health.  Accordingly, NACWA has been advocating with Congress and EPA to promote further analysis into risks and appropriate remediation to ensure that federal the PFAS response is based on sound science.

Regulatory Action – Federal and State

The US Environmental Protection Agency (EPA) published its Strategic Roadmap on October 18, 2021 detailing how and when the Agency plans to tackle PFAS in the months and years ahead. EPA’s Strategic Roadmap is an intra-agency wide effort spearheaded by EPA’s PFAS Council. The Strategic Roadmap builds upon the 2019 PFAS Action Plan and 2020 PFAS Action Plan Update and is a comprehensive outline of actions and timelines EPA will take to address PFAS under several federal statutes – including the Clean Water Act (CWA), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), Safe Drinking Water Act (SDWA), Clean Air Act (CAA), and Toxic Substances Control Act (TSCA). For a summary of what’s in the PFAS Roadmap relevant to the clean water community, please read EPA Roadmap Reveals Biden Administration’s Regulatory Strategy for Addressing PFAS in NACWA’s Clean Water Current. 

In the absence of immediate federal action, a ripple effect is happening at the state level where states are mimicking each other on PFAS legislative or regulatory efforts. Aggressive approaches are being taken in the drinking water, wastewater and biosolids management realms. Two examples of particular concern are Maine’s recent prohibition on biosolids land application, and a Massachusetts’ proposal currently under legislative consideration that would enact moratorium on both the procurement of new structures and engagement in activities that may generate PFAS in air emissions, inhibiting sewage sludge incinerators (SSIs) within the state. 

The municipal clean water community supports source reduction and pollution prevention in the case of PFAS, just as it has with other chemicals in the past. Controlling and reducing the prevalence of those PFAS that are of known significant concern must also be addressed through federal laws and regulations that prevent their use in commerce and/or release to the environment. Those who manufacture these chemicals should be responsible for any needed remediation and the ultimate elimination of PFAS from uses that pose a threat to the environment.

In addition, greater attention to evidence-based science and the development of thorough risk assessments in needed to determine appropriate human health and environmental protection thresholds. It is equally important to identify the actual sources of PFAS and mitigate these chemicals from entering water resources in the first place through proper statutory and regulatory authority. As consumers buy and use PFAS-containing goods, there must be an understanding that the day-to-day contact with these materials is also a proximate source of exposure and contributor to PFAS in the environment.

Legislative Developments and NACWA Advocacy

Beginning around 2019, Congressional attention to PFAS ramped up substantially and has remained high since. Since then, NACWA has continuously worked in a collaborative and bipartisan manner with Congress to ensure Representatives and Senators are informed about how these proposals could impact the clean water sector and to ensure that any final legislation is workable for utilities and advances the goals of clean and safe water.

More recently, in July 2021, the House moved to pass the PFAS Action Act of 2021, H.R. 2467, which NACWA and the water sector strongly opposed in large part because the legislation required EPA to designate PFOA and PFOS as hazardous substances under CERCLA within one year without an exemption for public water utilities. During the process, NACWA and the water sector worked closely with Reps. David McKinley (R-WV) and Josh Gottheimer (D-NJ), who offered a bipartisan amendment that would have exempted public water and wastewater utilities from CERCLA liability.  Unfortunately, the House Rules Committee voted not to advance the amendment to the full House for consideration as part of H.R. 2467 but the amendment, and the strong advocacy around it by the water sector, have been important factors in ensuring H.R. 2467 or similar PFAS legislation with a CERCLA designation has yet to make its way through the Senate.

NACWA continues working with Congress in a bipartisan, productive, and collaborative manner to help ensure that any legislation related to PFAS protects the public and water customers from undue liability, and meaningfully addresses risks from PFAS. Congress must avoid negative unintended consequences on the provision of clean, safe, affordable water services and support public utilities in their efforts to protect public health and the environment – recognizing public clean water agencies are not the polluters but partners. As it relates to CERCLA this includes explicitly exempting public water and wastewater utilities from PFAS liability if they are designated as CERCLA hazardous substances.

NACWA Resources

  • NACWA Call to Action Template Letter for H.R. 7944, the Water Systems PFAS Liability Protection Act (April 23, 2024)
  • NACWA Call to Action Template Letter for S. 1430, the Water Systems PFAS Liability Protection Act
    (April 23, 2024)
  • NACWA Cost Analysis on Impacts of PFAS (September 20, 2023)
  • Water Coalition Against PFAS - Correcting PFAS Myths: Misperceptions Risk Higher Clean-up Costs for Water Ratepayers (August 23, 2023)
  • NACWA Comments on the EPA's Advanced Notice of Proposed Rulemaking, Addressing PFAS in the Environment (August 9, 2023)
  • NACWA and Water Coalition Against PFAS Letter of Support for Senate Exemption Bill (May 2, 2023)
  • PFAS, the Clean Water Sector, and Advocacy Asks - Spring 2023 Update (April 2023)
  • Letter to EPA on Limits to CERCLA Discretionary Policy (March 31, 2023)
  • Legal Perspective - PFAS Litigation 
  • Communications Toolkit for PFAS and Biosolids
  • NACWA and Water Coalition Against PFAS Letter to Congress (February 3, 2023)
  • NACWA Comments on EPA’s Proposed Designations of PFOA and PFOS as CERCLA Hazardous Substances (November 2022)
  • Reportable Quantity Calculator (October 2022)
  • NACWA Suggested Biosolids Land Application Principles Talking Points (September 2022)
  • NACWA White Paper on Biosolids Management (June 2022)
  • NACWA Letter to Assistant Administrator Fox Urging EPA Reaffirm its Commitment to Biosolids Management Options (June 14, 2022)
  • NACWA Coordinated Sector Letter Emphasizing Need for CERCLA Exemption (April 28, 2022)
  • NACWA Co-Authored Opinion Editorial - Bangor Daily News (March 30, 2022)
  • NACWA written testimony to the Commonwealth of Massachusetts regarding S2655, An Act Establishing a Moratorium on the Procurement of Structures or Activities Generating PFAS Emissions (February 18, 2022)
  • Testimony before the U.S. House Transportation & Infrastructure Committee, Water Resources Subcommittee, by James J. Pletl, Ph.D, Director, Water Quality Dept, Hampton Roads Sanitation District on behalf of NACWA (October 6, 2021)
  • Support Letter for Clean Water Act PFAS legislation (October 5, 2021)
  • Municipal Clean Water Considerations on Clean Water Act Legislative Proposals (Fall 2021)
  • NACWA Recommendations to the U.S. EPA Council on PFAS (June 14, 2021)
  • Guidance: How-To Use the Pesticide Root Zone Model in Screening Level PFAS in Land Applied Residuals and Biosolids (May 2021)
  • NACWA Comments on EPA’s Interim Guidance for PFAS Destruction and Disposal (March 12, 2021). 
  • NACWA/WEF/NEBRA Cost Analysis of the Impacts on Municipal Utilities and Biosolids Management to Address PFAS Contamination (October 29, 2020, revised January 2021)
  • Review of Models for Evaluating PFAS in Land Applied Residuals and Biosolids (Version 1.1 - June 24, 2020)
  • NACWA comments to EPA on Listing PFAS on Toxic Release Inventory (February 2, 2020)
  • Notable State Activity on PFAS (February 1, 2020)
  • A Clean Water Utility's Guide to Considering Source Identification, Pretreatment, and Sampling Protocols for PFAS (November 25, 2019)
  • National PFAS Fact Sheet developed by PFAS receivers (November 1, 2019) 
  • NACWA legal considerations on CERCLA liability
  • Hot Topics Webinar – The PFAS Tsunami: A Regulatory, Legislative, & Legal Dive into the Current Wave of Issues Facing the Clean Water Community; Webinar Slides *Full webinar recording available upon request (June 11, 2019)
  • NACWA Statement for the Record – U.S. Senate Environment and Public Works Committee Hearing (May 21, 2019)
  • NACWA Communication Committee meeting – Crisis Communications Strategy for PFAS: The Emerging Public Issue; Audio Recording (May 1, 2019)
  • NACWA media talking points on biosolids and PFAS
  • NACWA Comments on EPA Request for Input on PFAS (July 20, 2018)

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