[author Verónica N. Vázquez]
How municipalities and water districts can use CERCLA to shift the financial burden of PFAS and legacy industrial contamination from ratepayers to polluters.
New investigations for PFAS provide an opportunity to better understand cumulative groundwater contamination.
In April 2024, the U.S. EPA finalized National Primary Drinking Water Regulations, setting enforceable Maximum Contaminant Levels (MCLs) for six PFAS, including a stringent 4.0 parts per trillion (ppt) for PFOA and PFOS. Simultaneously, these chemicals were designated as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This regulatory shift is not merely a compliance hurdle; it is a profound expansion of the legal tools available to public water systems (PWS).
The New Frontier of Water Regulation
The American Water Works Association (AWWA) estimates annual compliance costs could exceed $3.8 billion1. For many utilities, this necessitates funding sources far beyond traditional ratepayer increases. The designation of PFOA and PFOS as CERCLA hazardous substances allows water providers to invoke the "Polluter Pays" principle, moving the financial responsibility to those who introduced these chemicals into the environment.
Unmasking the Past: Legacy Contamination
Mandatory PFAS monitoring is uncovering secondary challenges: legacy contamination. PFAS were used extensively in industrial processes, often alongside other hazardous chemicals. Consequently, PFAS plumes rarely exist in isolation. These investigations reveal decades-old contaminants migrating through groundwater, including:
- Chlorinated Solvents (TCE, PCE)
- 1,4-Dioxane & Hexavalent Chromium
- Petroleum Compounds (BTEX)
- Landfill Leachate & Metals
The Dual-Benefit Infrastructure
Sophisticated technologies required for PFAS removal—such as Granular Activated Carbon (GAC) and Ion Exchange (IX) Resins—are also highly effective at remediating legacy contaminants. This creates a "dual-benefit" for infrastructure investment. Because these systems address cumulative threats, their installation and long-term operations are eligible for broader cost recovery efforts against multiple Potentially Responsible Parties (PRPs).
The Polluter Pays: Utilizing CERCLA
Under CERCLA Section 107(a), water providers can recover "necessary costs of response" from PRPs. This includes not just the construction of treatment plants, but also hydrogeologic studies, groundwater modeling, and specialized testing.
Identifying Common PRPs
- Metal Plating & Electronics
- Historical use of PFAS as mist suppressants and chlorinated solvents for degreasing.
- Airports & Fire Sites
- Extensive use of Aqueous Film-Forming Foam (AFFF) during training and emergencies.
- Landfills & Waste Sites
- Disposal locations for textiles, paper, and industrial chemical waste for decades.
- Textile & Packaging
- Manufacturing plants that utilized PFAS for water and grease-resistant coatings.
Actionable Cost Recovery Pathways
Municipalities have several avenues to move beyond ratepayer funding. CERCLA Litigation (Section 107a) allows direct recovery, while joining Multi-District Litigation (MDL) has already resulted in billions in settlements from major manufacturers like 3M and DuPont. Early investigation is the linchpin of this strategy; identifying PRPs before corporate entities dissolve or records vanish is critical to long-term financial health.
Why Early Investigation Matters
1: Identify PRPs sooner to establish clear legal nexus before records are lost.
2: Accurately forecast costs to ensure correct engineering, preventing retrofits.
3: Document scientific data to provide a foundation for legal or settlement actions.
Protecting Your Community’s Future
The convergence of PFAS regulations and legacy industrial contamination presents both a challenge and a unique opportunity. By leveraging CERCLA and the "Polluter Pays" principle, water systems can secure the funding necessary for public health without burdening their residents. Decisive action today ensures a sustainable, funded, and clean water future for generations to come.
- https://www.awwa.org/AWWA-Articles/awwa-statement-on-proposed-pfas-drinking-water-standards/
