America’s water utilities face an urgent challenge: per- and polyfluoroalkyl substances (PFAS), or “forever chemicals,” contaminate drinking water, posing risks like cancer and developmental issues. As the EPA sets strict PFAS limits, utilities risk crippling liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Like oil spill cleanup crews shielded from blame, utilities are passive receivers, not polluters, yet face lawsuits for treating contaminated water. Congress must exempt them from CERCLA liability and fund the $175 billion cleanup, or innocent consumers will pay an unjust price.

PFAS, found in numerous consumer products, have polluted groundwater and rivers through industrial discharges by industrial companies. EPA data shows PFAS in the blood of 99% of Americans, with over 200 million exposed via drinking water. In 2024, the EPA set drinking water limits for six PFAS compounds at 4 parts per trillion—a few drops in an Olympic-sized pool. Utilities must monitor and treat PFAS within five years using advanced filtration technologies, costing an estimated $175 billion. Wastewater plants face similar mandates, escalating expenses.

The Federal Super Fund-CERCLA’s strict liability framework, enacted in 1980, holds all parties responsible for hazardous waste, regardless of fault. In 2024, the EPA designated PFAS as hazardous, meaning utilities could be liable for PFAS in treatment byproducts, like sludge disposed in landfills. This traps utilities, which inherit PFAS from upstream polluters, in a costly legal net. These unforeseen expenses would raise water bills, burdening consumers for a problem they didn’t create.

This suggests a similar action of the absurdity of suing oil spill cleanup crews. In the 2010 Deepwater Horizon disaster, BP paid $65 billion in penalties and cleanup costs under CERCLA and the Oil Pollution Act. Response teams—skimmers and wildlife rehabilitators—faced no liability, as the law protected those mitigating the mess. Similarly, utilities are the cleanup crews of the water world, filtering safe lifegiving water for communities. They didn’t profit from PFAS; manufacturers did, knowingly discharging these chemicals. Settlements reflect this: 3M pledged $10.3 billion and DuPont/Chemours/Corteva $1.185 billion to offset utility costs. Exempting utilities from CERCLA aligns with the “polluter pays” principle, preventing a chilling effect where fear of lawsuits delays treatment.

Without exemptions, the American Water Works Association warns of severe impacts, especially for small rural systems facing bankruptcy. Ratepayers—ordinary families—would bear higher bills, worsening inequality in underserved areas. The EPA’s temporary enforcement discretion is insufficient against private lawsuits. Bipartisan legislation, like H.R. 1267/S. 1430, Water Systems PFAS Liability Protection Act. proposes exemptions for utilities and wastewater plants, ensuring only polluters face accountability. Federal funding is also critical. The 2021 Bipartisan Infrastructure Law’s $1 billion for PFAS is a start, but a PFAS trust fund, modeled on the Oil Spill Liability Trust Fund and financed by manufacturer fees, could bridge the gap, supporting technology upgrades and monitoring.

Critics claim exemptions weaken accountability, but the oil spill model proves shielding responders encourages swift action. Utilities already face public scrutiny and EPA mandates. With settlements showing manufacturers can pay without harm to their company, redirecting liability promotes corporate responsibility.

Congress must pass H.R. 1267/S. 1430 and fund a PFAS trust to protect utilities and ratepayers. Punish polluters, not the rescuers. Clean water is an absolute necessity—act now to secure it, ensuring our water infrastructure thrives without forever chemicals. Just make sure the actor that caused the problem pays.

Commissioner Eric Skrmetta is currently fulfilling his 17th consecutive year of service as Public Service Commissioner for the State of Louisiana, presently as Vice Chairman of the Commission.  He is a Member of the Board of Directors of the National Association of Regulatory Utility Commissioners (NARUC), serving as Co-Vice Chairman of the NARUC Subcommittee on Nuclear Energy, NARUC Washington Action Committee Member, and others. Commissioner Skrmetta holds a Bachelor Degree, a Juris Doctorate, and LLM in Admiralty Law.