The Senate Committee on Environment and Public Works recently hosted a hearing to consider ongoing efforts by the Environmental Protection Agency (EPA) to expand regulation of PFAS chemicals as hazardous substances. EPA is proceeding with action to list the two chemicals that are the most studied and no longer produced domestically, PFOA and PFOS, as hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act (also known as CERCLA or the Superfund law).
As hearing witness Kate Bowers, Legislative Attorney at the Congressional Research Service testified, "Designation of one or more PFAS as a hazardous substance under CERCLA would subject releases of those PFAS into the environment to CERCLA's reporting requirements and liability framework." Because CERCLA liability "is retroactive, strict, joint and several," who bares the cost for future clean-up costs remains an important dividing line in how the US addresses the regulation of chemicals that are nearly ubiquitous in our environment, including broad use in consumer products and critical capacities in which there are limited/no alternatives.
Much of the conversation during the hearing therefore focused on consideration of enforcement discretion by EPA and the potential creation of certain exemptions from CERCLA liability.
Ranking Member Shelley Moore Capito (R-WV) opened her comments by recognizing "PFAS are almost everywhere" and later entered into the record letters from more than 200 "passive receivers" of PFAS. Capito stated that despite assurances from EPA regarding enforcement, application of CERCLA without exceptions would be too broad as it would not provide liability protection for those potentially responsible parties that had no role in manufacturing or applying PFAS. "Absent Congressional intervention, the burden of clean-up sites tainted with PFAS will fall on the shoulders of entities like drinking water and clean water systems and waste management utilities," Capito said. In discussing the potential to pass additional PFAS legislation she stated that the inclusion of passive receiver liability protection "is a non-negotiable condition for me."
Representatives of two passive receivers were on the panel and active during the question and answer session. The General Counsel of the Passaic Valley Sewearge Commission, testified on behalf of the Water Coalition Against PFAS that, the lack of liability protection "exposes each and every water utility in the country to being labeled a 'potentially responsible party' under CERCLA. And it exposes millions of water ratepayers across the country to having to fund PFAS cleanups for pollution caused by private corporations."
The concerns of solid waste passive receivers were enumerated by Robert Fox, testifying on behalf of the National Waste and Recycling Association & Solid Waste Association of North America. He highlighted that listing PFAS compounds directly under CERCLA is unprecedented, there are no current standards for PFAS in landfills and waste handlers are interdependent public services. "As a practical matter, CERCLA designation of these PFAS compounds in the absence of Congressional relief would compel landfills to restrict inbound wastes with elevated levels of PFAS compounds." He continued, "More basically, CERCLA liability will completely disrupt the well-established municipal waste infrastructure in this country. Certain wastes will have no place to go. And increased disposal costs will turn CERCLA's objectives from a "polluter pays" policy into a 'community pays' reality."
Not everyone is sold that passive receiver or other liability exemptions are necessary. Scott Faber with the Environmental Working Group highlighted health fears associated with PFAS exposure, alleging that producers have lied about their risks. "Our view is simple: Legal loopholes are the problem, not the solution. Businesses and organizations representing millions of people strongly oppose new PFAS loopholes, especially when these loopholes will result in more, not less, PFAS pollution."
New Mexico Environment Department Secretary James Kenney offered testimony that utilizing CERCLA and the Resource Conservation and Recovery Act (RCRA) would constitute a commonsense approach. He also said the Department of Defense is "the largest and most recalcitrant PFAS polluters in the United States" and urged a revision to the policy to allow the Defense Environmental Restoration Program to implement CERCLA, preferring EPA take over.
What are PFAS?
A constellation of thousands of chemicals that have been in use since the 1940s, PFAS are commonly used to improve the resilience of materials. PFAS can be found in stain and water repellants used in a wide variety of consumer products, including carpets, outerwear, non-stick cooking equipment and various food packaging. PFAS are regularly used within many manufacturing facilities and in the production of traditional and renewable energy, medical devices and semiconductors. The chemicals have unique firefighting protection qualities and are present at airports, military installations and other locations where high-hazard liquid fires are more likely to occur.
What Other Regulations are Being Developed to Address PFAS?
The regulatory pathway began during the previous administration and current EPA Administrator Michael Regan announced an update to the agency's PFAS Strategic Roadmap in October of 2021 that continues to guide the Biden Administration's effort to "Research. Restrict. Remediate" PFAS. Concurrent to the effort to designate PFOA and PFOS as hazardous substances, EPA works to establish a drinking water standard for those and four other PFAS.
While the EPA continues its deliberate path to more regulation, states are taking a variety of actions ranging from banning food packaging that contain PFAS and restricting use of PFAS-containing firefighting foams to increasing testing and regulation of water. Likewise, federal legislators have filed a multitude of bills addressing various concerns with PFAS. While broad federal legislative action remains unlikely this year, Congress has passed various smaller measures to address more specific issues, like first responder exposure to PFAS and its handling at military installations.
Bose Public Affairs Group is engaged in the evolving federal policymaking framework and is actively tracking developments in all 50 states.
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