This week NACWA and several public utility member representatives met with the White House’s Office of Management and Budget (OMB) to discuss the potential significant costs that could be imposed on clean water utilities pursuant to potential designations of PFOS and PFOA as CERCLA hazardous substances, which is currently being considered by EPA.

NACWA Board of Directors Vice President Tom Sigmund with NEW Water, NACWA Board member Mike Witt with Passaic Valley Sewerage Commission, and NACWA Legal Affairs Committee Co-Chair Devon Goodrich with the New York City Law Department spoke with OMB about the substantial remediation costs and legal fees that public utilities can incur under CERCLA, even where they do not cause or contribute to or in any way profit from the pollution at issue. 

Providing real-world examples to OMB, NACWA’s members explained how the risk of a “public pays” rather than “polluter pays” outcome exists under CERCLA even where EPA does not seek cost recovery from public agencies, as other potentially responsible parties can and do bring utilities into CERCLA contribution claims, where the issue is then out of EPA’s hands.

NACWA’s members reiterated that public clean water utilities are not polluters, but rather entities dedicated to protecting human health and the environment which are funded by the communities they serve and required to handle the influent coming into their facilities.

NACWA therefore encouraged EPA to shore up its existing CERCLA regulatory exclusions for certain regulated wastewater treatment and management activities, look to its source control authorities to help manage ongoing risk, and support a tailored statutory exclusion from CERCLA PFAS liability for clean water utilities. 

Contact Amanda Aspatore, NACWA General Counsel to discuss.