NACWA submitted comments this week to the U.S. Senate Environment and Public Works (EPW) Committee on draft PFAS legislation, highlighting the critical need for inclusion of a Congressional legislative exemption for public clean water utilities from CERCLA liability for PFAS. 

In June, the Senate EPW Committee released its bipartisan PFAS legislative discussion draft for stakeholder comment as it looks to move forward on a PFAS bill. As expected per ongoing discussions NACWA has had with EPW staff over the past year, the draft legislation largely focuses on risk management, enhanced industrial source information, and efforts to address gaps in PFAS research and mitigation. However, it does not include any CERCLA liability exemptions for public clean water utilities or any other sectors under EPA’s proposed hazardous substance designation.  

NACWA staff has had ongoing engagement with both the Democratic and Republican EPW Committee staff on the need for inclusion of a PFAS CERCLA liability exemption for public clean water utilities in any PFAS legislative package. But due to strong pushback from the environmental activist community on any potential exemptions, the Majority EPW Democrats have opposed attempts by the Minority EPW Republicans to include provisions in the draft package protecting public clean water utilities and other passive receivers from PFAS CERCLA liability and the undue costs they will likely incur as “potentially responsible parties” (PRPs). 

The Water Coalition Against PFAS, of which NACWA is a member, also sent up a targeted letter to the EPW Committee this week expressing the critical need that as the Committee moves forward with this proposed legislation, Congress clearly exempt “passive receivers” like clean water and drinking water utilities from PFAS-related CERCLA liability and ensure that Congressional and EPA efforts to control PFAS hold actual polluters accountable. 

While the draft package as released did not include a CERCLA exemption for the water sector, discussions continue among EPW Committee members about how to potentially address this issue if and when the legislation comes before the Committee for markup – possibly through an amendment process. NACWA is active in these conversation with Committee staff.  

Aside from the CERCLA piece, NACWA’s comments on the bill largely support the Committee’s bipartisan efforts, particularly provisions in the bill initiating a National Academies of Sciences study on the uses of PFAS and the ability for states to use up to 1 percent of their annual State Revolving Funds (SRF) capitalization grants to establish and maintain a list or registry of all nonresidential industrial facilities in the state that manufacture or use PFAS. However, provisions relating to the need for greater source control efforts and understanding PFAS risks to clean water systems are critical pieces that NACWA sees missing from this proposed draft. In addition to the CERCLA issue, NACWA will continue working with committee staff on potential legislative fixes during ongoing discussions. 

At this point, it is unclear if and when the EPW Committee will markup and advance this PFAS package, but NACWA encourages members to continue weighing in with their Senators, as well as House Representatives, on the critical need for any PFAS legislation to include a CERCLA liability exemption for public clean water utilities.   

Also, with the start of the August Congressional state and district work period only a few weeks away, NACWA encourages members to reach out to their Congressional delegations to schedule meetings and treatment plant tours with their respective Senators and Representatives and further demonstrate first-hand the critical work you do in providing essential public services to their constituents. 

Please contact NACWA’s Director of Legislative Affairs, Jason Isakovic, with any questions or to discuss further.