Water Associations Share Final Comments on PFAS CERCLA Proposal

Nov. 9, 2022
The U.S. EPA has proposed that PFAS chemicals be listed as hazardous substances in the Superfund. Industry associations cite concerns with elements of proposal.

The National Association of Clean Water Agencies, Water Environment Federation, American Water Works Association, and Association of State Drinking Water Administrators shared their final comments on a U.S. EPA proposal that would list PFAS chemicals as hazardous substances.

The hazardous substances designation would fall under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), which is more commonly referred to as Superfund. The two per- and polyfluoroalkyl (PFAS) chemicals in question are perfluorooctanic acid (PFOA) and perfluorooctane sulfonate (PFOS).

The U.S. EPA position has indicated that creating this designation would give it the authority to initiate legal battles against PFAS chemicals manufacturers for contaminating waterways to hold polluters accountable. However, the NACWA, WEF and AWWA comments on the proposed rule all share opposition to the current language and cite concerns about unintended impacts. Meanwhile, ASDWA said it has taken “neutral position” on the subject.

NACWA Statement on PFAS in Superfund

In a statement Nov. 7, NACWA said the current proposal fails to deliver on the promise of holding polluters accountable. Instead, the agency said the proposal “threatens to push significant costs and liabilities onto local communities; increase affordability concerns, particularly for disadvantaged communities; and untenably put cleanup actions ahead of critical source control and risk assessment processes.”

NACWA said this is due to EPA’s impact analysis because that analysis focused on direct reporting costs without recognizing the burdens it would place on communities as a result. EPA declined to consider these costs in its impact analysis, NACWA's comment states, focusing narrowly on direct reporting cost while glossing over significant burdens that communities will face.

“The simple fact is that public wastewater and stormwater systems are passive receivers of these chemicals,” said Adam Krantz, CEO of NACWA, in the statement. “Public clean water utilities neither produce nor profit from them. But EPA’s current proposal unnecessarily risks shifting the cost for cleaning them up from a ‘polluter pays’ model to a ‘community pays’ model where local clean water ratepayers will be stuck with the bill. It is critical that EPA address this shortcoming before the proposal is finalized to ensure local utilities are not on the hook.”

Water Environment Federation (WEF) Statement

Water Environment Federation Executive Director Walt Marlowe also sent the U.S. EPA a letter Nov. 7 with comments regarding the proposal to add PFOA and PFOS as hazardous substances under CERCLA.

In his letter, Marlowe said WEF supports beneficial reuse and suggested the EPA proposal is “premature and lacking information that would be needed in order to proceed with a science-based rulemaking.” Additionally, the letter noted its analysis of the economic impact “lacks robustness” to fulfill the requirements of the proposal being “economically significant.”

WEF reaffirmed a long-held position by it and all other industry associations that water and wastewater utilities treat these chemicals out of water rather than generate them. It also warned of the challenges the proposal would create for beneficial reuse programs across the country, particularly as it relates to land application.

Marlowe explained WEF understands there is ongoing research into the impact of PFAS as it relates to land application and surface disposal, but expressed concern with the unintended consequences of the proposal as it is written.

“Prior to considering a CERCLA designation, it is critical that EPA review all components related to PFAS research and regulation and first develop policies that support the continued use of these products so farmers can use them with confidence,” Marlowe said. “Without additional fertilizer alternatives available to our farming community, this will directly impact our farms and access to locally grown agricultural products.”

As it relates to economic significance, WEF’s letter shares that EPA’s review of the economics does not adequately assess the costs that would be felt by utilities, as it only accounts for the cost of reporting.

While reporting costs may not be considered “economically significant” by EPA, they still have the high probability that they can be due to the cost of preparing a report as well as the frequency of doing so. These costs will be minimal compared to the other quantitative impacts to water and wastewater systems. These impacts include the economic impacts on water systems to the extent new disposal requirements of PFOA- and PFOS-laden filtration media or biosolids will be necessary. This also includes the economic impacts arising from implication of becoming a “Potential Responsible Part” (PRP) under CERCLA. However, EPA’s analysis in the Proposed Rule does not acknowledge these types of costs — costs that will ultimately be incurred by water and wastewater utilities and the public at large.

The letter from WEF concludes by restating the scale of unintended consequences of the current proposal. It would negatively impact soil health initiatives, sustainability goals, methane gas avoidance in landfills, food accessibility, water scarcity, renewable nutrients and local fertilizer expansion.

“PFAS treatment is a fix after a failure and designating PFAS receivers as polluters is a scapegoat for the underlining issue of contaminant introduction,” Marlowe wrote. “WEF recommends that we utilize this challenge to public health and the environment as a learning opportunity and stop contaminants from entering our delicate watersheds in the first place.”

AWWA Letter Regarding PFAS & CERCLA

A Nov. 7 letter to the U.S. EPA from AWWA Executive Director of Government Affairs Tracy Mehan shared similar concerns that the proposal as it stands “imposes significant costs and long-term liability on drinking water and domestic sewage treatment facilities.” Mehan wrote that communities are most likely to foot the bill for treatment and that with such a proposal it creates especially difficult burdens on “those living in environmental justice communities.”

Mehan references a Hazen & Sawyer analysis from 2022, which estimates the cost of waste management for water systems would grow by $3.5 billion annually due to the liability enforcement of CERCLA.

"More broadly, we found so many flaws in EPA’s analysis and places where EPA failed to make use of its own internal data or publicly available information that we are concerned that the EPA has not properly consulted with its own subject matter experts and outside stakeholders to understand the implications that the Proposal would have on water systems and other impacted systems and will therefore not be entitled to deference from the courts,” Mehan wrote.

The EPA, he added, also has not offered a clear and consistent dialogue on the issue, and also declined to extend the public comment period by 60 days to allow for more review.

In the letter, Mehan outlines 10 items of concern from the AWWA, including a number of assessments that the EPA incorrectly concluded the magnitude of its legal authority in some cases and incorrectly interpreted laws related to the proposal. Another bullet echoes the point made by WEF that the economic assessment is inadequate in that it “fails to recognize publicly available materials on waste management costs for waste materials that are necessary to characterize impacts under UMRA and RFA.” UMRA refers to the Unfunded Mandates Reform Act and RFA refers to the Regulatory Flexibility Act.

Mehan also wrote that the agency’s planned reliance on “enforcement discretion” will not effectively protect ratepayers or tax payers, nor will it “protect water systems from liability.” The letter states such enforcement “will quickly overburden EPA staff and potentially delay cleanups.”

ASDWA Takes ‘Neutral Position’ on CERCLA Proposal

In some contrast to the comnents of other associations, ASDWA Executive Director Alan Roberson’s letter to the EPA as a public comment indicates the association is of a “neutral position” on the proposal. The association, Roberson wrote, supports the intention of the proposal to hold polluters accountable and urges the U.S. EPA to ensure the costs of remediation and treatment are “borne by the responsible manufacturers and users of PFOA and PFOS, not the public through mechanisms such as increased water rates to cover the costs of PFAS treatment in drinking water.”

The letter asserts that CERCLA is not the best or appropriate vessel to handle PFAS remediation as it was designed to address specific sites of pollution. Due to the proliferation of PFAS chemicals contamination across the country, using CERCLA in this way would not be practical.

In addition to those comments, Roberson said ASDWA members created a list of pitfalls with the current proposal, which includes EPA and the federal government’s chronic underfunding of water and wastewater systems; timelines with the current CERCLA process to hold polluters accountable; the impact of a CERCLA designation on drinking water facilities considering current regulations to establish an MCL and MCLG for PFAS chemicals; and difficulty in tracing PFAS sources, particularly for medium to small water systems.

“With all the critical complications, ASDWA recommends that EPA provide a detailed example in the final rule that details how the Agency will manage cleanups and potential impacts to water utilities,” Roberson wrote. “ASDWA recommends that EPA run a tabletop exercise using a known PFAS-contaminated site to run through the entire process. The Agency’s guidance should include simple visualizations of the process, such as using a flow chart in each phase, so the process is easily understood. This detailed example could help alleviate valid concerns of the water utilities.”

Resources & Links to Official Comments

The public comment letters from NACWA, WEF, AWWA and ASDWA can be viewed on the Federal Register website for the proposal. Copies of the letters were provided to Water & Wastes Digest by each organization mentioned in this report. Below are links to publicly available documentation of comments for those found on each organization’s website.

  1. Federal Register Official Proposal
  2. Public Comments on Official Proposal
  3. NACWA Comments on the U.S. Environmental Protection Agency’s Proposed Comprehensive Environmental Response, Compensation, and Liability Act Hazardous Substances: Designation of Perfluorooctanoic Acid and Perfluorooctanesulfonic Act
  4. WEF’s Comments on the Proposed Listing of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as Hazardous Substances Under the Federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
  5. American Water Works Associations Comments on Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances
About the Author

Bob Crossen

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