PFAS CERCLA Liability Exemption

Summary#

The Water Systems PFAS Liability Protection Act is a bill to amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), a federal environmental cleanup law. It would limit when certain water-related entities can be required to pay costs or damages under CERCLA for releases of certain hazardous PFAS (per- and polyfluoroalkyl substances). Its stated goal is to exempt those entities from that CERCLA liability; the bill is not law and is still in progress.

  • The protection would cover public water systems; publicly or privately owned or operated treatment works; municipalities with certain stormwater permits; state political subdivisions or special districts acting as wholesale water agencies; and contractors doing specified management or disposal work for them.
  • It would apply only to a defined group of PFAS: non-polymeric substances with at least two sequential fully fluorinated carbon atoms, excluding gases and volatile liquids, that are CERCLA hazardous substances.
  • The exemption would apply only when the entity handles the substance in a way consistent with all applicable laws at the time, in connection with water conveyance or treatment under federal or state law. Listed examples include managing biosolids, permitted effluent discharges, treatment residuals and byproducts, and water storage or conveyance for conservation or reclamation.
  • The bill would preserve CERCLA liability for damages or costs if a protected entity acted with gross negligence or willful misconduct.

What it means for you#

  • Water and wastewater systems, covered municipalities, wholesale water agencies, and their contractors: If the bill became law, others—including the federal government, states, and tribes—could not recover CERCLA costs or damages from you for qualifying releases when the bill’s conditions are met. The exception for gross negligence or willful misconduct would remain.
  • People and communities: The bill does not set drinking-water limits, require a treatment method, or create a cleanup service. It could affect who can be made to pay under CERCLA for some releases; the bill does not say whether or how cleanup costs might otherwise be covered.
  • Other parties: The bill would not itself exempt manufacturers or other entities outside its list of protected entities.

Money#

No cost information is in the available material.

  • The bill specifies no spending, staffing, fee, or fine.
  • It could limit CERCLA cost or damage recovery from covered entities in qualifying cases, but the material gives no estimate of the financial effect or who might otherwise bear those costs.

What is unclear#

  • The parent CERCLA law was not supplied, so I could not verify how current law treats these entities or how the proposed exemption would interact with existing CERCLA rules.
  • The bill does not explain how it would apply where a release involves both a protected entity’s activities and another party’s conduct.
  • The text does not spell out how compliance with “all applicable laws” or the gross-negligence and willful-misconduct exception would be determined.
  • The bill does not state when it would take effect.
  • It addresses CERCLA liability only; the supplied text does not explain how it would interact with other laws or cleanup programs.

Case for#

  • The bill appears intended to address the risk that water systems and related public entities could face CERCLA costs for PFAS releases connected to handling water or treatment byproducts.
  • A possible argument for the bill is that entities handling water under applicable legal requirements should not face CERCLA cost recovery for those activities, unless their conduct was grossly negligent or intentional.
  • The bill’s conditions and misconduct exception would keep the protection from applying in every case.

Case against#

  • One concern is that limiting CERCLA recovery could leave fewer options for recovering cleanup costs from covered water entities, even when a release causes costs or harm.
  • The bill does not explain who would pay costs that could no longer be recovered from a protected entity.
  • It is unclear how the conditions and misconduct exception would be applied in disputed cases, or how the exemption would work when several parties contributed to a release.