The U.S Environmental Protection Agency (EPA) released a pre-publication version on August 26 of a rule that would designate the two most common per- and polyfluoroalkyl substances (PFAS) — perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) — as hazardous substances under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). 

This proposal, if finalized, could present significant challenges and potential legal liabilities for public clean water agencies.  NACWA has published an Advocacy Alert providing an analysis of the proposal, what it means for NACWA members, and how clean water agencies can engage going forward on important advocacy efforts related to the proposal.

While this action was widely anticipated by EPA, NACWA is disappointed that the Agency did not clarify that the normal operations of clean water utilities – including the discharge of wastewater effluent and municipal stormwater containing PFAS and the management of biosolids with PFAS – are exempt from CERCLA requirements. NACWA has argued strongly that clean water utilities should be exempt from a PFAS CERCLA designation – both with EPA and with Congress – and will continue these efforts moving forward.

The proposal will be published in the Federal Register within the next few weeks, which will trigger a 60-day public comment period.  NACWA will file comments and encourages Association members to do so as well. EPA has a goal of finalizing the proposed rule by August 2023.

EPA is also expected to issue a separate Advanced Notice of Proposed Rulemaking (ANPR) sometime during the winter months to seek public comment on designating other PFAS chemicals as hazardous substances under CERCLA.

Members are encouraged to review the NACWA Advocacy Alert for more information, including a special briefing on the proposal that EPA is holding for local officials on September 8. Please do not hesitate to contact Nathan Gardner-Andrews, NACWA’s Chief Advocacy & Policy Officer, with questions.