Clean Water Current

Since January, the White House’s Office of Management and Budget (OMB) has been reviewing EPA’s proposed rule to list PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). On August 12, OMB formally completed its review. Notably, upon completion of its review, OMB updated the designation of the proposed rule to “economically significant” – which suggests that OMB has determined the rule is expected to impose costs of $100 million or more annually.  

Pursuant to OMB Circular A-4, this change in designation to “economically significant” could indicate that EPA will be required to conduct a Regulatory Impact Analysis (RIA). An RIA takes into account both the direct reporting costs as well as a broad look at the indirect costs and benefits of, and potential alternatives to, a regulation.  

Absent this change, stakeholders expected that the proposed designation would be published in the federal register for public comment as soon as this week. NACWA expects to learn more in the coming days how this change will impact the process and will keep members apprised.  

Listing of certain PFAS as hazardous substances under CERCLA is intended by EPA to drive cleanup by polluters at contaminated sites. However, clean and drinking water agencies are very concerned that a hazardous substance designation for PFAS – ubiquitous chemicals used in commerce for decades – could trigger unintended liabilities and major costs for public clean water agencies, who passively received PFAS in their influent

NACWA and its members have been active on this issue with EPA, OMB, and Congress, including holding several meetings with OMB (more here and here) to emphasize the potential implications of the designation. The Association will continue closely tracking these developments and keep members updated. Contact Kristina Surfus, Managing Director of Government Affairs to discuss.