PFAS Contamination: CIRCLA Liability, Water Costs, and Development Uncertainty

CIRCLA and PFAS Ubiquity

• 💡 The expert explains that CIRCLA was not designed for chemicals like POA or POS due to their ubiquitous nature.
• ⚠️ The proposed MCL of four parts per trillion under the Safe Drinking Water Act will drive Superfund cleanup standards, creating a significant problem.
• 🎯 This ubiquity, combined with the MCL, is expected to explode the range of potentially responsible parties, including water and wastewater utilities.

Alternative Legal Tools

• 🛠️ The expert suggests looking beyond the Safe Drinking Water Act, which is an "end of the pipe" solution burdening rate payers.
• 💧 Source water protection is recommended as a strategic approach.
• 📈 Other tools include affluent guidelines under the Clean Water Act targeting PFAS compound producers, which are not currently being utilized.

Impact on Water Utilities and Affordability

• 💰 CIRCLA designation will impact affordability for water utilities and their customers, as utilities could be among the potentially responsible parties.
• 📉 Litigation costs, which can run into millions of dollars over years, and reputational risk are significant factors that affect customer-facing entities like utilities.

Development and Site Remediation Uncertainty

• 🚧 The development community, markets, and lenders dislike uncertainty, which the designation of POA/POS injects due to undefined and inconsistent cleanup standards.
• 🔍 Identifying the source of ubiquitous chemicals like PFAS is extremely difficult and expensive, implicating significant liability.
• ⚠️ Even after EPA deems a property clean, a subsequent owner could still sue, claiming further cleanup is necessary, highlighting the draconian nature of CIRCLA liability.