NACWA and the American Farm Bureau Federation (AFBF) last week led a coalition of water sector and agriculture groups in filing an amicus curiae brief in the ongoing litigation surrounding the U.S. Environmental Protection Agency’s (EPA) designation of perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).   

The brief highlights EPA’s failure to adhere to the Administrative Procedure Act and adequately consider the potential legal liability the designations impose on clean water and drinking water utilities, farmers and ranchers, and other “passive receivers” of per- and polyfluoroalkyl substances (PFAS). That failure, the brief explains, threatens to turn CERCLA from a “polluter pays” statute into a “public pays” regime in the context of PFAS cleanups.  

NACWA and the American Farm Bureau led a coalition in filing an amicus brief. The brief highlights EPA’s failure to adhere to the Administrative Procedure Act and adequately consider the potential legal liability the designations impose on passive receivers PFAS.

Importantly, the brief distinguishes the water and agricultural sectors from the manufacturers and users of PFAS, many of whom are challenging the scientific and legal underpinnings of the designations and asking the U.S. Court of Appeals for the D.C. Circuit to overturn them. By contrast, the passive receivers’ coalition brief seeks a remand of the rule to EPA so that the Agency can more fully account for and address the potentially crippling liability the designations would impose on the people and entities responsible for the provision of clean water, drinking water, and food services to the public.   

The brief also outlines the important role passive receivers will play in mitigating future PFAS contamination, and notes how the public should not have to also bear the costs of cleaning up the contamination caused by those who profited from the manufacture and sale of PFAS chemicals. Ultimately, the brief argues, passive receivers are victims of PFAS contamination that should be exempt from CERCLA liability for PFAS cleanups under CERCLA’s “polluter pays” principle.             

Joining NACWA and AFBF on the brief were the National Association of Water Companies, National Rural Water Association, Water Environmental Federation, WateReuse Association, National Cattlemen’s Beef Association, and the National Pork Producers Council. NACWA thanks its sector partners and agriculture allies for their support on this important effort.   

For questions about NACWA’s brief or the ongoing litigation over the hazardous substance designations, please contact NACWA’s General Counsel, Amanda Aspatore.