While EPA’s Enforcement Discretion Memo Accompanying Final Rule is Welcome Addition, it Does Nothing to Protect the Public from Third Party Liability

(Washington, D.C.) – Today, the U.S. Environmental Protection Agency (EPA) moved to formally designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The Agency also published a corresponding enforcement discretion memo which outlines how EPA intends to focus its enforcement actions directing cleanups under the new rule.

Adam Krantz, CEO of the National Association of Clean Water Agencies (NACWA), stated: “Unfortunately, EPA’s CERCLA designations come ahead of the more necessary step of imposing source control requirements to keep PFAS out of our homes, commerce, and waterways in the first place. EPA's action unfairly places even more burden on municipal clean water systems and their already cash-strapped ratepayers. Public clean water agencies are not the cause of, nor do they have the ability to prevent, PFAS in water systems.

While EPA’s enforcement discretion memo makes it clear that the Agency will not target clean water agencies for PFAS clean-ups, CERCLA by design places those same utilities at risk of lawsuits initiated by third parties – including the polluters themselves – intended to foist the costs of cleaning up PFAS pollution onto the very public that is already having to endure the human health and environmental burdens caused by these “forever chemicals.”

Congress must act swiftly to pass legislation to protect water systems from CERCLA PFAS liability so that massive cleanup costs and legal fees are not inequitably borne by households in their water bills.  Polluters should pay for PFAS cleanups, not the public.”

Since 2022, NACWA has been working as part of the Water Coalition Against PFAS to advance statutory protections for water systems against CERCLA’s strict liability regime in the event of CERCLA PFAS designations. In 2023, Sen. Lummis (R-WY) introduced legislation aimed squarely at solving this issue.  The Senate Environment and Public Works Committee held a hearing March 20 and earlier this week, bipartisan companion legislation was introduced in the House.  

NACWA urges Congress to move swiftly to enact legislation to protect clean water customers from facing endless litigation and financial burdens brought by the very industries that polluted and profited from PFAS production for decades.

Media Contact:­

Nathan Gardner-Andrews | NACWA Chief Advocacy & Policy Officer

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ABOUT NACWA

For over 50 years, the National Association of Clean Water Agencies (NACWA) has been the nation’s recognized leader in legislative, regulatory, legal, and communications advocacy on the full spectrum of clean water issues. NACWA represents public wastewater and stormwater agencies of all sizes nationwide. Our unique and growing network strengthens the advocacy voice for the public clean water sector and helps advance policies to provide affordable and sustainable clean water for all. Our vision is to advance sustainable and responsible policy initiatives that help to shape a strong and sustainable clean water future. For more information, visit us at www.nacwa.org.