Attorney warns DC Circuit ruling on PFOA/PFOS could expose agencies to new liability

Jeremy, the board's attorney, briefed directors on a recent decision by the U.S. Court of Appeals for the D.C. Circuit that rejected trade-association challenges to EPA's rule designating PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

"They have been designated during the Biden administration as hazardous substances under CERCLA," Jeremy said, and the D.C. Circuit "rejected the challenges" in a way that confirmed EPA's authority to make these designations. He warned the designation could raise significant liability issues for water and wastewater agencies, particularly in the context of biosolids and sludge disposal, because many biosolids contain trace amounts of PFAS. Jeremy said trade associations are working on potential legislative language to limit liability for passive receivers but whether legislation passes remains uncertain.

Jeremy said the issue goes beyond plume-based contamination because PFAS are widely distributed ("It's everywhere. It's in the air. It's in our bodies."), complicating remediation and liability exposure for agencies that manage wastewater and biosolids. He urged board awareness and noted CASA and other groups are engaged on potential statutory protections.

Board members did not take a formal action in open session but were advised of the potential policy and legal implications for operations and permitting.