The CERCLA Designation and Its Industrial Implications
In April 2024, EPA designated PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) — commonly known as Superfund. While the immediate focus was on cleanup liability for contaminated sites, the downstream effects on industrial water treatment contracts have been significant and are still unfolding. For industrial facilities that discharge to water, treat process water, or manage wastewater containing PFAS, the designation fundamentally changes the legal and contractual landscape.
CERCLA hazardous substance status means that releases above the reportable quantity must be reported to the National Response Center, and that parties associated with releases — including industrial operators, property owners, and potentially service contractors — face potential liability under CERCLA’s strict, joint-and-several liability framework. This is not theoretical exposure: it is the same liability mechanism that has driven multi-billion-dollar Superfund settlements in other industries.
How Liability Is Being Allocated in Water Treatment Contracts
The most immediate contractual effect of the hazardous substance designation has been in how liability is being allocated between industrial operators and their water treatment service providers. Prior to the designation, PFAS treatment contracts often placed primary compliance responsibility on the operator, with service providers warranting only that their technology would perform to specified removal levels. Post-designation, contract negotiations have become significantly more complex.
Industrial operators — now acutely aware of their potential CERCLA exposure — are pushing for stronger performance guarantees from treatment vendors, including indemnification language tied to regulatory compliance outcomes. Service providers, in turn, are pushing back by insisting that performance obligations be tied to defined influent conditions and operating parameters, rather than open-ended compliance guarantees. The result has been longer contract negotiation timelines and more detailed technical annexes specifying exactly what the treatment system is warranted to achieve.
For filter media and equipment suppliers who feed into these service contracts, the implication is clear: the performance data underlying any warranty claim must be robust and verifiable. Weak or poorly documented performance claims are now a contractual liability risk, not just a competitive weakness.
Industrial Discharge Permits and Treatment Adequacy Standards
Industrial facilities discharging to publicly owned treatment works (POTWs) or directly to surface water are finding that PFAS treatment adequacy is increasingly written into their discharge permits. Under the hazardous substance framework, POTWs facing their own compliance obligations have become more aggressive about imposing pretreatment requirements on industrial users, particularly in sectors like metal plating, semiconductor manufacturing, textile finishing, and fire suppression foam disposal.
These pretreatment requirements are being written into industrial discharge permits as numeric limits — often aligned with the new MCLs for PFOA and PFOS, with some POTWs going further to address short-chain compounds. For industrial operators, this means that the PFAS treatment technology they procure must be capable of meeting permit limits that may be more stringent than the MCLs themselves, depending on local regulatory conditions.
Contract Language That Procurement Teams Must Now Include
Legal and procurement teams at industrial facilities are revising standard water treatment contract templates to address the new liability environment. Key additions include: explicit representation of which PFAS compounds the treatment technology addresses; third-party testing data requirements tied to specific chain lengths; documentation of spent media handling, transport, and disposal responsibility; and notification provisions tied to reportable quantity releases under CERCLA.
Some facilities are also inserting audit rights — the ability to inspect treatment performance data and operational records — as a contractual mechanism for ongoing compliance verification. This is particularly relevant where the industrial operator faces potential CERCLA liability and needs to demonstrate due diligence in its treatment operations.
The Forward View: More Designations Are Coming
EPA has signaled that PFOA and PFOS designations are the beginning, not the end, of the CERCLA hazardous substance process for PFAS. Additional compounds — including PFNA, PFHxS, PFBS, and others — are under consideration for future designation. Industrial operators and their legal teams should be building contract frameworks now that can accommodate an expanding compound list, rather than treating the current designation as a fixed endpoint.
Water treatment contracts written today should include provisions for contract modification as the regulatory framework evolves, with clear mechanisms for adjusting performance specifications, testing requirements, and liability allocations as new compounds are designated. This forward-looking contract design is not just prudent risk management — in the current liability environment, it is increasingly standard practice.