Water Online: How CERCLA Complicates The PFAS Problem

August 29, 2023
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By Kevin Westerling (August 29, 2023)

As states and the federal government attempt to crack down on the proliferation of per- and polyfluoroalkyl substances (PFAS) and their health consequences with a spate of new regulations, there is one significant upcoming ruling that will have tremendous impact for compliance and costs: the final rule on PFAS CERCLA designation.

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund, is a U.S. federal law designed to address hazardous waste sites and the cleanup of contaminated areas. And if PFAS gets a CERCLA designation, the decision of which will come down in February 2024 (delayed from August 2023), it will dictate how transportation and disposal of the “forever chemicals” can be carried out. For drinking water utilities that must comply with proposed National Primary Drinking Water Regulation (NPDWR) to remove six PFAS, set to be finalized in January 2024, this would mean greater care and cost for disposing of the PFAS byproduct that results from treatment processes such as granular activated carbon (GAC), anion exchange resins, and membrane systems (reverse osmosis and nanofiltration).

The CERCLA designation could also impact wastewater utilities, aka water resource recovery facilities (WRRFs), by limiting their ability to reuse biosolids for land application due to their PFAS concentrations. Furthermore, blameless landowners — like public utilities, ‘passive receivers’ of the chemicals — could inherit the cost of removal. The hope, however, is that the final rule will create exemptions to avoid unfair and overly burdensome statutes.

To provide the best available insight on what remains an uncertain issue, I’ve collected some analyses and commentary by leading experts on the prospects of CERCLA designation and the potential consequences to varying stakeholders.

First, a legal overview from McGlinchey Stafford PLLC:

“The designation of PFAS as hazardous substances under CERCLA would establish liability for current and former owners and operators of facilities where hazardous wastes were released or disposed, as well as generators and arrangers of disposal or transportation of hazardous substances and transporters of hazardous substances. This means that any entity handling designated PFAS could become liable for the recovery and remediation costs of PFAS releases or threatened releases and would need to comply with federal law on transportation and disposal of hazardous waste. The delay in the CERCLA designation presents several implications, including the potential for broader hazardous substances designations and more time for congressional action.

“The delay also gives Congress more time to respond to the proposed designation and offer statutory protections for water and wastewater utilities and other passive receivers such as solid waste disposal facilities and composting facilities. The delay may also indicate that EPA is taking time to further develop its CERCLA Enforcement Discretion Policy. In the event that Congress does not provide a statutory exemption for water systems and other passive receivers, the policy would clarify EPA’s intention to focus enforcement of the new CERCLA designations on PFAS manufacturers and those whose conduct releases significant amounts of PFAS into the environment. The policy is expected to recommend non-enforcement against passive receivers.”

Speaking on behalf of water utilities, the Water & Health Advisory Council published the following excerpt — more of an appeal — as part of an open letter to Barry Breen, Acting Assistant Administrator at the Office of Land and Emergency Management.

While we appreciate the EPA’s continued efforts to address PFAS in the environment, we have concerns with the proposed PFAS CERCLA rule and the rationales provided. Our main areas of concern are as follows:

We advocate for a risk/benefit-based approach to regulating PFAS considering the diverse opinions of expert toxicologists and varying advisory levels for PFAS. It is evident that there is no consensus regarding the derivation of accurate risk-based thresholds for these compounds, and international agencies have developed pragmatic approaches that consider significant uncertainties within the available toxicity data. We encourage the EPA to adopt a more balanced and practical approach to interpreting the potential human health risks associated with the PFAS listed in the ANPRM, and perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS).

The proposed PFAS CERCLA rule will have significant economic impacts on the water sector. Water treatment facilities and water utilities across the country may be required to implement costly measures to detect, treat, and remove PFAS from drinking water sources. It is imperative that the trigger for such actions be based on well-defined health implications to ensure response actions result in improved public health and do not waste resources. The development and adoption of advanced treatment technologies and infrastructure upgrades to comply with the proposed PFAS standards can lead to substantial capital expenses for the water sector. A more robust cost impact analysis should detail the potential impact for the water sector and other industries.

Water and wastewater systems could be held liable for cleanup and remediation of PFAS, which would divert cost and attention away from known water threats. The cost of water treatment and infrastructure upgrades required to meet stringent PFAS standards could place an additional strain on already limited resources. As cities strive to ensure the provision of safe drinking water to their residents, the financial implications of PFAS regulation must be carefully evaluated to prevent unintended consequences on municipal budgets and public services. The EPA should also consider the financial burden that will be extended to the rate payer and the increased costs per household.

For many municipal water utilities, CERCLA compliance expenses associated with PFAS are likely to crowd out investments that would yield greater public health benefits, such as arsenic and lead abatement, or distribution system improvements. CERCLA also introduces a set of new complexities that most drinking water utilities have never had to address before. Small or medium-sized utilities may lack the institutional expertise and bandwidth to deal with the legal and reporting requirements alone.

Disposal considerations and guidance must also be more clearly defined. As the water sector adopts PFAS treatment technologies, the issue of PFAS waste disposal becomes critical. If these PFAS are designated as a hazardous substance under CERCLA, the disposal of waste containing PFAS may become more complex and costly. Water utilities will need clear guidance and regulations on how to manage, store, and dispose of PFAS-containing waste materials safely. We request the EPA assess and provide guidance on the potential costs of treatment and disposal guidelines for PFAS materials, as well as potential alternatives to minimize the financial impact.

In conclusion, we strongly advocate for an approach to PFAS regulation that is based on robust scientific evidence and takes into account the impacts and unintended consequences of this rule. As we strive to ensure the availability of safe drinking water for all, we must also consider the economic implications and the potential burden this rule could place on already strained resources.

Lastly, I wondered what insights AI could give on the subject, using ChatGPT. Essentially, it draws on innumerable sources from across the web to create a well-sourced but concise answer to my question, “How will CERCLA affect PFAS regulation and disposal?”1

Here are the bullet points of AI-generated wisdom:

  • Site Investigation and Cleanup: CERCLA provides a framework for identifying and cleaning up hazardous waste sites, including those contaminated with PFAS. If a site is determined to be contaminated with PFAS, it may be subject to CERCLA’s cleanup process. The Environmental Protection Agency (EPA) can take action to investigate and remediate PFAS contamination under CERCLA.
  • Listing as Hazardous Substances: CERCLA allows the EPA to list substances as hazardous if they pose a significant risk to human health and the environment. If PFAS are listed as hazardous substances under CERCLA, it could trigger stricter regulatory measures and cleanup standards for contaminated sites.
  • Liability and Cost Recovery: CERCLA establishes a liability framework, holding responsible parties accountable for the costs of cleaning up hazardous waste sites. If entities are found to have contributed to PFAS contamination, they could be held financially responsible for cleanup efforts.
  • Emergency Response: CERCLA allows for emergency response actions to address immediate threats to public health and the environment. If a release of PFAS poses such a threat, CERCLA mechanisms could be used to respond swiftly and effectively.
  • Regulatory Influence: CERCLA’s actions and decisions can influence other regulatory efforts related to PFAS. For instance, if the EPA takes significant action under CERCLA, it might set a precedent for PFAS regulation under other laws, such as the Safe Drinking Water Act and the Resource Conservation and Recovery Act.
  • Coordination with Other Laws: CERCLA interacts with other environmental laws and regulations. For example, the EPA could collaborate with states and other agencies to address PFAS contamination using a combination of CERCLA provisions and other regulatory mechanisms.

The chat-bot concluded: “It’s important to note that PFAS regulation is a complex and evolving issue, and developments can occur after my last update,” proving that even Artificial Intelligence, with the infinite internet at its fingertips, cannot predict what’s to come.

Stay tuned to Water Online, however, as we promise to keep you up to date on all the information you’ll need to surmount any problems the PFAS CERCA designation might (im)pose.

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