EPA Hosts PFAS CERCLA Potential Liability Listening Session
On March 23, the U.S. Environmental Protection Agency’s (USEPA) Office of Office of Enforcement and Compliance Assurance held the second of two public listening sessions to seek public input on concerns regarding future potential liability enforcement policies for PFAS contamination under CERCLA. The purpose of the listening session was to provide a general overview USEPA’s efforts to develop CERCLA enforcement policies and allow for remarks from participants. The event did not allow questions from the audience and did not address USEPA’s proposed rulemaking to designate PFAS as hazardous substances under CERCLA.

During the informational portion of the listening session, USEPA explained it is still working to finalize its proposed rulemaking to designate PFOA and PFOS as CERCLA hazardous substances, intends to focus enforcement liability efforts on manufacturers, federal facilities, and other industrial parties whose actions result in release of significant amounts of PFAS pollution. USEPA explained that as they develop enforcement liability policies, the Agency may choose not to take CERCLA enforcement actions against certain entities, including publicly owned treatment works. USEPA did not provide insight as to when the Agency will put out potential liability enforcement policies for public comment.

Greg Kester, Director of Renewable Resource Programs, spoke CASA’s concerns about potential CERCLA liability during the public comment portion of the session. Kester noted:

  • The need to clarify that wastewater effluent, recycled water, and biosolids land application should be exempt from CERCLA liability since they are a federally permitted release under NPDES permits and/or under 40 CFR part 503.
  • The intention to provide enforcement discretion to publicly owned treatment works does not provide legal certainty.
  • Existing biosolids rules state that biosolids placed on land for beneficial purposes and applied in compliance with the requirements for land application which include accepted agricultural practices using appropriate application rates, constitutes the normal application of fertilizer.

As part of the listening session, USEPA also provided the opportunity for written comments to be submitted. CASA submitted public comments on the need to provide the clean water sector A CERCLA liability exemption because of the adverse impacts and risks of clean water utilities being held liable by third parties for cleanup costs.

The Agency will take the comments it receives into consideration as it works to develop potential liability enforcement policies for PFAS under CERCLA.

 

Proposed PFAS National Drinking Water Regulation Published
The U.S. Environmental Protection Agency’s (USEPA) PFAS National Primary Drinking Water Regulation proposed rulemaking was recently published in the Federal Register. The deadline for submitting public comments on the proposed rulemaking is May 30, 2023. The proposed rulemaking, USEPA has identified six PFAS chemicals that would be regulated: PFOA, PFOS, PFNA, PFXxS, PFBS, and GenX chemicals. USEPA will be hosting a public webinar on May 4, 2023 to hear verbal comments about the proposed rule. To attend and provide verbal comments, you can register here by April 28.

 

President Biden Vetoes Congressional Effort to Overturn WOTUS Rule
As part of the latest development in the decades long effort to define what constitutes a “water of the United States” for jurisdictional purposes, last week President Biden vetoed H. J. Res. 27 that would have overturned the U.S. Environmental Protection Agency’s new WOTUS Rule. Last month, Congress passed H.J. Res 27 by slim margins in both chambers. As a result, it will be challenging for proponents of the resolution to secure a two-thirds vote to override the veto. Ultimately, the congressional effort to overturn the new WOTUS rule and the U.S. Environmental Protection Agency’s jurisdictional authority may end up being moot given the pending outcome this Spring of Sackett v. U.S. Environmental Protection Agency and other litigation.