The Association of Metropolitan Water Agencies (AMWA) supports a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund)statute that requires responsible parties to clean up contaminated ground water to assure protection of human health and the environment and attain any Maximum Contaminant Level Goal applicable to a contaminant for which they are responsible. The statute should protect uncontaminated ground water, and make polluters, and not water suppliers or their customers, legally and financially responsible for damages caused by hazardous waste pollution. When a responsible party is no longer in business and has left behind an abandoned contaminated site, the Superfund program (funded either through general appropriations or the Superfund excise tax) should pay for the cost of the cleanup.
In cases where treatment of contaminated water is technically impracticable, alternatives that ensure a safe, reliable and permanent supply of drinking water are preferable to remedies that involve temporary measures such as home treatment devices and the provision of bottled water. In addition, the statute should explicitly recognize the importance of including drinking water suppliers in Superfund decision-making. The statute should preclude liability against drinking water suppliers for leakage from drinking water system facilities of treated water that meets National Primary Drinking Water Regulations, or against drinking water systems that lawfully dispose of hazardous substances that are removed from source water during the treatment process. Further, water systems should not be named as potentially responsible parties (PRPs) when the withdrawal of water for drinking water use may contribute to or accelerate migration of contaminants from a Superfund site.
Several essential water treatment chemicals, such as chlorine, caustic soda, and sodium hypochlorite, are regulated as hazardous substances under CERCLA, making them subject to the Superfund Excise Tax that Congress reinstated in 2021. As a result, some suppliers of these substances began to impose surcharges on their customers, thereby increasing chemical supply costs for water systems and their ratepayers. Policymakers should avoid new regulatory policies that could further exacerbate the cost that water systems must pay for these treatment chemicals, or at least be mindful of these costs when developing new laws or regulations.
AMWA supports retention of CERCLA Section 104(a)(3)(C) to ensure drinking water systems are exempt from liability under the law due to deterioration of the system through ordinary uses.
Rationale:
- Ground water is a finite and precious resource. Contamination of ground water sources further narrows its availability.
- Consumers have a right to a safe and reliable supply of drinking water.
- As a matter of economic fairness, the clean-up burden should fall on the party responsible for the pollution. This includes entities that allowed hazardous contaminants to enter drinking water sources. A drinking water system that removes and properly disposes of hazardous substances during the treatment process should not subsequently face liability under CERCLA related to further environmental cleanups.
- If the responsible parties cannot be identified, cleanups utilizing Superfund should ensure that drinking water needs are met without unduly burdening consumers.
- Water suppliers should be explicitly included in the process for determining Superfund remedies, given their knowledge of ground water use, community needs, and water quality issues.
- Water systems have no choice but to purchase chemicals necessary to carry out necessary water treatment activities at market rates. Increased chemical supply costs due to new regulatory mandates will generally be passed on to ratepayers, thereby negatively impacting water affordability.
- Water distribution piping and water leaks may inadvertently add negligible levels of contaminants to a Superfund site. Normal withdrawal of water from an aquifer for drinking water use may cause migration of contaminants from a Superfund site.