With the EPA finalizing the first-ever national, legally enforceable drinking water standard to protect communities from exposure to harmful per- and polyfluoroalkyl substances (PFAS), the next obvious question becomes: Who is legally liable for both the consequences of their presence and the cost of removing these chemicals from drinking water?

The U.S. Senate Committee on Environment and Public Works recently discussed the implications of designating two types of PFAS chemicals—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Among the considerations were questions regarding potential areas of liability for utility companies and municipalities.

“The Senate is considering passing legislation to help shield utilities from liability.  Sen. Jeff Merkley, a Democrat from Oregon, emphasized that this would not absolve water and wastewater utilities from testing for those chemicals,” according to a New Mexico Political Report article. “Ranking Minority Member Sen. Shelley Capito, a Republican from West Virginia, discussed what she described as passive receivers such as wastewater utilities. While they may not have been the initial source of the PFAS contamination, the PFAS chemicals can end up in wastewater systems and result in contamination downstream if not properly removed.

“Capito expressed concern that these passive receivers could end up footing the entire bill for PFAS contamination and could face litigation because of it.”

The cost of removing and destroying PFAS from municipal wastewater is between $2.7 million and $18 million per pound, according to a report published by the Minnesota Pollution Control Agency (MPCA).

Many public water systems have expressed concerns that local taxpayers will end up paying for the cost of treating drinking water for PFAS contamination considering the EPA’s new drinking water standards.

“Since PFAS contamination is mainly the result of manufacturers' negligent conduct and misrepresentation of their products' safety, the National Rural Water Association (NRWA) filed a class action lawsuit in 2020 on behalf of public water utilities across the U.S. to keep the liable polluters accountable,” according to a blog post by Environmental Litigation Group P.C. “In June 2023, the NRWA secured two historic settlements against Corteva, DuPont, and Chemours ($1.185 billion) and the 3M chemical corporation ($12.5 billion payable over 13 years), with the funds meant to assist vulnerable rural communities and drinking water providers cover the exorbitant costs of PFAS cleanup.”

Because the 3M litigation is ongoing, other public water systems can still join in the lawsuit.

The current administration has allocated a total of $21 billion in funding from the Bipartisan Infrastructure Law to address the detection and treatment of PFAS in public drinking water systems.

RCRA

The Political Report article notes that James Kenney, the New Mexico Environment Department cabinet secretary, testified before the Senate committee. New Mexico has a history of fighting for stricter PFAS regulations, both through the court system and in political advocacy.

“Kenney has advocated in the past for using a law known as the Resource Conservation and Recovery Act, or RCRA, to regulate PFAS,” the Political Report article says. “During the hearing, he described RCRA as the nation’s hazardous waste plan. Kenney said that RCRA is something that states can currently use to address PFAS contamination.

“This is because the Congress had the insight to give the U.S. EPA and states broad authority under RCRA.

“He said that it makes sense to address PFAS under RCRA prior to implementing CERCLA requirements because ‘RCRA is largely implemented by the states. In contrast, CERCLA is primarily implemented by multiple federal agencies with less involvement from EPA and states.’ … Kenney said that on his fifth day as cabinet secretary … ‘New Mexico was slapped with a lawsuit to undermine RCRA authority for the cleanup of PFAS by the United States. We’re now in the fifth year of that lawsuit.’

“Kenney offered two suggestions to the committee. The first was that Congress take immediate action to list PFAS as hazardous waste under RCRA. His second suggestion was that Congress should modify CERCLA and the Defense Environmental Restoration Program so that the EPA is the only agency in charge of implementing the regulations.”

The high price tag associated with removing PFAS from waste and drinking water systems is staggering in and of itself, making the $21 billion allocated by the federal government a mere drop in the bucket. Then, there’s also the exorbitant costs of legal liability to add to the bottom line.

Because the administration has moved forward with putting enforceable drinking water limits on five individual PFAS and mixtures of any two or more of four PFAS, answers to questions regarding where the money will be found to pay for these costs must be determined sooner rather than later. Shielding drinking water systems and, ultimately, taxpayers from these expenses must be a priority for all involved.