Proposed PFAS legislation has some public utilities concerned

July 26, 2022 / 2 min read

The U.S. Environmental Protection Agency (EPA) is on track to deem two groups of chemicals, perfluorooctanoic acid, or PFOA, and perfluorooctanesulfonic acid, or PFOS, as “hazardous" under the federal CERCLA, or Superfund law. The White House has been moving towards designating per-and polyfluoroalkyl substances, or PFAS chemicals, as hazardous and will be reviewing the EPA’s change in regulation throughout 2022. The designation is currently in line to be adopted as a federal rule by 2023.

Environmental groups claim that there is a lack of proper regulation of PFAS, and there are more than 12,000 chemicals that fall into PFAS classification. But by placing PFOA and PFOS under the Superfund substances bracket, industrial facilities will be required to conduct regular reports on releases of these substances into the environment. Such a requirement is reportedly provoking concern that some companies may then seek contributions to help pay for cleanup costs. The change in regulations will likely lead to states and agencies adopting stricter standards and may lead to more PFAS remediations being sought.

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Business concerns

Drinking water and wastewater utilities, as well as municipal solid waste landfills, are concerned that users and taxpayers will have to contribute to the cleanup costs. In 2021, the PFAS Action Act passed the House and set the EPA on the current course towards developing new PFAS standards.

The proposed PFAS Action Act does not include a liability exception for water-wastewater utilities. These utilities reportedly do not believe they should be part of the remediations since they are not the entities that are the source of the PFAS. Furthermore, they are concerned that civil litigation will be filed against them by the companies that are held responsible for PFAS remediations. The utilities are seeking some form of protection from the costs and liability imposed by Congress under CERCLA.¹

Verisk’s Emerging Issues team has been keeping a close eye on emerging PFAS concerns and pending legislation.

Powers, Mary B., and Debra K. Rubin, “Utilities Voice PFAS Liability Fear as Chemicals Head to Superfund List.” Engineering News Record, May 30, 2022, < www.enr.com/articles/54206-utilities-voice-pfas-liability-fear-as-chemicals-head-to-superfund-list >, accessed 23 June 2022.