The United States House of Representatives has passed per-and polyfluoroalkyl substances (“PFAS”) legislation as part of annual amendments to the National Defense Authorization Act (“NDAA”), H.R. 2500. Two last-minute amendments carry the potential for serious consequences for clean water utilities, as the amendments would trigger liability for all PFAS chemicals under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) as hazardous substances, which could potentially impose Superfund liability for biosolids containing PFAS. In addition to CERCLA liability, the amendments would also require that all PFAS be added to the Clean Water Act (“CWA”) toxic pollutants list, require the U.S. Environmental Protection Agency (“EPA”) to develop CWA effluent limitations for PFAS, and require pretreatment standards for PFAS.
PFAS are man-made chemicals that are typically produced by industrial and manufacturing operations and used in consumer products. PFAS have been used in non-stick cookware, water repellent clothing, stain resistant fabrics and carpets, cosmetics, fire-fighting foams, and products designed to resist grease, water, and oil. During production and use, PFAS have been found to migrate into soil, water, and air. PFAS are highly durable and do not readily breakdown, leaving many to question the effects of PFAS on human health and the environment.
The House amendments could significantly impact clean water utilities who accept wastewater containing PFAS from industrial and manufacturing users, as new effluent limitations and pretreatment standards could cause significant compliance issues and would likely result in the expenditure of significant resources to implement PFAS treatment technologies. Utilities that land apply solids potentially containing PFAS would also be subject to CERCLA regulation, which could result in significant cleanup costs and liability.
Steptoe & Johnson is actively monitoring this legislation as this House bill is reconciled with a Senate bill with different, less stringent, PFAS implications for clean water utilities. If you have questions regarding the potential implications of this bill on your utility, or if you would like assistance in readying your utility for PFAS legislation, please reach out to one of the authors below.