Water Coalition Testifies Before Senate About Importance of a PFAS CERCLA Exemption for Utilities

Mar 20, 2024

Drinking Water, Wastewater and Stormwater Utilities and The Communities They Serve Could Unfairly be on the Hook for Billions of Dollars in Cleanup Costs for Pollution from “Forever Chemicals” Under the Federal Superfund Law Unless Congress Acts

(Washington, DC) – The Water Coalition Against PFAS, a group of the leading national water sector associations, testified today on Capitol Hill before the Senate Environment & Public Works (EPW) Committee at a hearing examining the implications of listing certain per-and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The U.S. Environmental Protection Agency (EPA) is currently considering listing several PFAS, also known as “forever chemicals” for their persistence in the environment, as hazardous substances under CERCLA.  Given the ubiquitous nature of PFAS and the strict legal liability CERCLA imposes on certain parties just for coming into contact with listed substances, drinking water, wastewater and stormwater utilities and their hundreds of millions of customers all across the country could be forced to bear significant financial costs to address PFAS contamination -- even though these utilities played no role in the manufacture or distribution of PFAS, nor have ever profited from their sale.

The Water Coalition Against PFAS was represented at today’s hearing by Michael Witt, General Counsel of the Passaic Valley Sewerage Commission in Newark, New Jersey.  Witt’s testimony emphasized the importance of a “polluter pays” approach to dealing with PFAS that will force the companies that made and profited from the chemicals to pay for remediation – not water sector utilities and their customers. 

As Witt noted in his testimony:

“It is through the very act of providing clean and safe water to the public that utilities are exposed to CERCLA liability.  Utilities do not manufacture or profit from PFAS.  Industry did that, for decades.

In contrast, utilities passively receive PFAS via source water for drinking supplies and through wastewater discharged into sewer systems from homes and businesses.

That fact, and that fact alone, exposes each and every water utility in the country to being labeled a “potentially responsible party” under CERCLA.  And it exposes millions of water ratepayers across the country to having to fund PFAS cleanups for pollution caused by private corporations.

This is simply wrong.  Congress must act to fix it.  Our Coalition is asking Congress to provide water systems with liability protections under CERCLA for PFAS to help ensure polluters, not the public, pay for cleanups….  Communities should not pay for the privilege of being poisoned.  Congress must act to fix this by enacting targeted legislation to shield water sector utilities from CERCLA liability for PFAS.”

Adam Krantz, Chief Executive Officer of the National Association of Clean Water Agencies (NACWA), also had the following statement about today’s hearing:

“Public clean water utilities provide critical public health and environmental protection to thousands of communities and millions of Americans all across the county.  Forcing these utilities and their customers to pay for pollution they had no role in creating would not only be incredibly unfair, it would also put a disproportionate share of the costs on those most vulnerable, low-income households that can barely afford it, creating serious environmental justice concerns. 

That is why it is imperative that Congress create a true “polluter pays” approach to address PFAS pollution by creating a statutory exemption for the water sector under CERCLA and forcing the private companies that made these chemicals to pay the full cost.”

Tom Dobbins, Chief Executive Officer of the Association of Metropolitan Water Agencies (AMWA), states:

“There is one clear solution to prevent polluters from abusing CERCLA to avoid their clear responsibilities, and to prevent the administrative nightmare of requiring EPA to reach individual settlements with thousands of water systems nationwide: Congress must make a narrow, targeted addition to CERCLA to clearly and explicitly ensure that passive receivers that never produced or used PFAS chemicals in commerce are not forced to clean up the PFAS mess made by corporate polluters.

In the case of drinking water systems, the absence of such protections could force ratepayers to pay twice to clean up the pollution of others: once when PFAS is filtered out of source waters, and again potentially years later should the ultimate disposal site of the PFAS contamination become subject to a cleanup under CERCLA.

Our member utilities are committed to working cooperatively to attain our common goal of ensuring that those responsible for fouling our environment with PFAS are the ones paying the bill for cleaning it up. Water systems and ratepayers should not face liability exposure under CERCLA simply because they made required investments in their infrastructure to meet state and federal drinking water standards for PFOA and PFOS, and then followed all applicable laws in the disposal of the residuals.”

Tracy Mehan, Executive Director of Government Affairs for the American Water Works Association (AWWA), states:

“CERCLA was built on a “polluter pays” principle, by which those responsible for polluting a site are held financially liable for cleaning it up. Water systems do not manufacture, use, or benefit from the use of PFAS. In fact, water systems across the country will soon have to ask their ratepayers to shoulder the cost of installing the treatment technology necessary to remove these chemicals from their water supplies. Polluters should not be given the green light to offload their own cost burden onto these water systems and the local communities they serve.

Congress must provide narrowly tailored CERCLA liability protections for water and wastewater systems so that the significant cost of cleaning up these chemicals in the environment remains with those who put it there in the first place.”

Robert Powelson, President and Chief Executive Officer of the National Association of Water Companies, states:

“The water industry does not use, manufacture or profit from ‘forever chemicals’ like PFAS, but they are on the front lines of the efforts to minimize exposures through our drinking water. It is critical to ensure that polluters, not water and wastewater customers, are being held liable for the cleanup costs associated with PFAS. An exemption for the water industry under CERCLA will establish a true polluter pays approach that will protect families from being exposed to liability through their water and wastewater bills while holding those who produce, manufacture and user PFAS chemicals in their operations responsible.”

National Rural Water Association Chief Executive Officer Matthew Holmes had the following statement on today’s hearing:

"Small and rural water systems are the backbone of public health in rural America, and will be in a serious dilemma once EPA promulgates a rule designating PFOA and PFOS as hazardous substances. The looming presence of CERCLA liabilities could financially devastate these essential services. Our 31,000 member utilities are at the frontline battling the threat of PFAS contamination. 

These communities are not the source of PFAS, nor do they profit from these chemicals in any way. The costs of PFAS remediation could be catastrophic, forcing small systems to pass significant rate increases on to customers. Rural and economically disadvantaged communities should not bear the cost of cleaning up contamination they did not cause.

Our members respectfully ask that the U.S. Senate play a leading role in maintaining the affordability and sustainability of water services for all communities, especially those most vulnerable, by holding the true polluters accountable.”

Aimee Killeen, President of the Water Environment Federation (WEF), states:

“It’s critical that Congress pass legislation to protect utilities from CERCLA PFAS liability. As protectors of public health and the environment, utilities will already be at the forefront of removing PFAS from water for decades to come. As passive receivers of PFAS, they should not also be exposed to costly and unfair legal and regulatory burdens. The economic and clean-up burden should be borne by PFAS producers, not the utilities and their customers.”


About the Water Coalition Against PFAS

The Water Coalition Against PFAS includes organizations whose membership represent all facets of clean and safe water delivery – the Association of Metropolitan Water Agencies (AMWA), the American Water Works Association (AWWA), the National Association of Clean Water Agencies (NACWA), the National Association of Water Companies (NAWC), the National Rural Water Association (NRWA), and the Water Environment Federation (WEF).  The Coalition advocates for responsible PFAS policies that will result in a “polluter pays” approach to dealing with PFAS contamination.

Media Contact:­

Nathan Gardner-Andrews | NACWA Chief Advocacy & Policy Officer

(703) 774-6513, ngardner-andrews@nacwa.org

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