Musing on Superfund

Sept. 23, 2022
WWD Senior Managing Editor Bob Crossen shares musings on CERCLA designation for PFAS.

Since June 15, much of the news coverage and thought leadership on PFAS has been focused on drinking water, given that the U.S. EPA released updated health advisory levels for PFOA and PFOS. But there is still more to come on these contaminants, particularly as it relates to wastewater.

By now, I’m certain most of the industry heard about the crisis in Maine where the state legislator had banned land application of biosolids due to potential PFAS contamination. The ramifications of the legislation passed in that state created a massive disruption in business not only for wastewater utilities but also agriculture. And now with EPA preparing to release information on PFAS in wastewater — assuming it has not already done so as I write this in August — there are legitimate concerns in the wastewater community about PFAS regulation.

One of the most critical elements of regulation is if PFOA and PFOS are listed as hazardous substances under the Comprehensive Environtmental Response and Liability Act. And if they are designated under the law, how liability is structured and who is exempted will be important to identify.

Associations such as WEF, AWWA, NACWA and ASDWA have all been vocal about excluding utilities — both water and wastewater — from PFAS pollution liabilities because utilities are not producing the chemicals. If utilities do not get an exemption, how you deal with disposal and destruction of PFOA and PFOS is likely to become more intense. OMB finished its review of EPA’s proposal in August, and if you are reading this, it is likely public comment is open on the Federal Register.

One final note on this matter: regardless of how the liability exemptions shake out, having these chemicals added to CERCLA does open new legal avenues for holding polluters accountable. But just how litigious are utilities interested in getting?

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