This morning, the U.S. EPA designated perfluorooctanesulfonic acid (PFOS), perfluorooctanoic acid (PFOA), and their salts and structural isomers as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The U.S. EPA's Office of Land and Emergency Management (OLEM) released a Proposed Rulemaking for this designation in September 2022 and opened a comment period until November 2022. After approximately 18 months of review, the final rule has been released.

The WateReuse Association has been working to ensure that its members' voices were heard by the EPA, developing and submitting comments on the proposed rule and meeting with EPA leadership to advocate for a PFAS CERCLA liability shield for passive receivers of PFAS. Unfortunately, the final rule does not establish a liability shield for water, wastewater, and water recycling utilities. Instead, OLEM concurrently released a PFAS Enforcement Discretion and Settlement Policy that emphasizes that EPA does not intend to take enforcement actions against passive receivers such as community water systems, POTWs, MS4s, publicly owned landfills, publicly owned airports, publicly owned fire departments, and farms with applied biosolids. They will instead work to narrow their focus to PFAS manufacturers and other responsible parties when exercising their enforcement discretion. WateReuse met last year with OLEM to encourage this discretion, but also argued that EPA's enforcement discretion would not adequately protect utilities from third-party litigation.

Because state and third-party litigation regarding PFAS contamination may still impact utilities, WateReuse will continue to pursue a legislative solution that ensures that PFAS manufacturers and those that initially introduced PFAS into commerce will be held responsible for cleanup costs.

In the coming days, WateReuse will fully analyze and provide a detailed assessment of the final rule, associated documents, and its implications for water recycling projects across the country.