House Passes Clean Water Permitting Legislation with NPDES Permit Term Extension
On March 21, the House passed the Creating Confidence in Clean Water Permitting Act (H.R. 7023) on a vote of 213-205. As part of the package, the House unanimously adopted Representative John Garamendi’s (D-CA) amendment to allow States, like California, with Clean Water Act delegation authorities to issue a National Pollutant Discharge Elimination System (NPDES) permits for up to ten years for publicly owned wastewater treatment works.  The legislation is now before the Senate Committee on Environment and Public Works awaiting committee consideration.

The issue of extending NPDES permits to up to 10 years has been a long-term priority for CASA. Extension of the NPDES permit term recognizes the current reality of constructing and maintaining water infrastructure. It would allow public agencies, including CASA agencies, States and the public have adequate time to comply with existing regulatory requirements before the imposition of new mandates. As a result, public agencies would be able to better plan and more efficiently constructure projects that require new and advanced treatment technologies. Finally, it would benefit States as it will give more resources to their regulatory departments to direct towards nonpoint sources and watershed-based solutions.

 

Senate Committee Examines Passive Receiver CERCLA Liability Exemption
On March 20, the Senate Committee on Environment and Public Works convened a hearing to examine the liability impacts of designating PFAS chemicals as hazardous substances under the Comprehensive Emergency Response, Compensation, and Liability Act (CERCLA). Specifically, the hearing focused on the issue of providing CERCLA liability exemption to passive receivers, which would include  wastewater agencies. The hearing occurred as the U.S. Environmental Protection Agency (USEPA) is finalizing rules by the end of April to designate PFOS and PFOA as hazardous substances under CERCLA and create a 4PPT drinking water standard.

The need to provide wastewater agencies CERCLA liability exemption for PFAS has been a key priority for CASA. To this end, CASA, along with a broad coalition of passive receiver stakeholders, sent a joint letter to committee leadership ahead of the hearing. In the letter, CASA and the other co-signers emphasize the need and reasoning for why the committee must provide statutory protection for passive receivers for PFAS under CERCLA.

During the hearing, there was broad agreement among both committee members and witnesses that addressing PFAS contamination is a complex and challenging issue, and that primary responsibility should fall upon PFAS manufacturers. Committee Chair Tom Carper (D-DE) and Ranking Member Shelley Moore Capito (R-WV) both agreed that they want to advance a bipartisan legislative package, but Capito noted that developing protections for passive receivers, especially in the instance of smaller communities that cannot afford litigation, is necessary as part of any solution.

Testifying before the committee were a state environmental regulator, the Congressional Research Service, environmental NGO, and the passive receiver community. Representing passive receivers were witnesses testifying on behalf of the water, wastewater, and solid waste sectors. Water and solid waste witnesses documented examples of how CERCLA liability would capture passive receivers and result in litigation costs that would span over years, if not decades in some instances. The passive receiver witnesses also emphasized the water and solid waste sectors’ desires to be part of the solution to address PFAS pollution, but liability exemption is critical to ensuring utilities’ are not unfairly dragged into third party lawsuits. Key takeaways from the discussion include:

  • Wastewater and water utilities are not responsible for PFAS pollution.
  • Landfills and wastewater agencies are interdependent and a CERCLA designation, without liability protection, would cause restrictions at landfills and disrupt well planned programs of management between both sectors.
  • In response to suggestions to use federal permits to provide CERCLA protection, passive receiver witnesses explained CERCLA is retroactive, creating liability for events that occurred before PFAS standards were established. Therefore, federal permits do not necessarily provide liability protection.
  • USEPA efforts to designate PFOA and PFOS under CERCLA bypasses the usual policymaking approach of first defining a chemical as a hazardous constituent under Resource Conservation and Recovery Act (RCRA) or other environmental statutes. State official endorsed relying on RCRA as the foundational approach to address PFAS.

The hearing concluded without an indication from the committee about how it will address the issue of passive receiver liability. However, the committee is expected to continue its work to design a bipartisan agreement on passive receivers protection from any CERCLA designation.