• The U.S. Senate Committee on Environment and Public Works (EPW) convened a hearing to examine the pros and cons of designating perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in anticipation of a final rule slated to do just that.
  • A CERCLA "Hazardous Substance" designation would subject PFOA and PFOS to a series of regulations restricting releases, requiring disclosures and mandating cleanup efforts.

The U.S. Environmental Protection Agency (EPA) issued a proposed rule on Sept. 6, 2022, to designate perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), along with their structural isomers, as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as the Superfund. The designation would trigger a number of requirements, including notification of release, extended reporting responsibilities and financial liability for mitigation and cleanup efforts.

The most contested and potentially burdensome aspect of designating a substance as hazardous under CERCLA is the strict joint and several liability provision. This holds any party potentially responsible for releases of hazardous substances liable for the cleanup of the release site, along with damages, injunctive relief and additional costs associated with mitigation efforts. In practice, this would mean current and past owners and operators of facilities where per- and polyfluoroalkyl substances (PFAS) contamination has been identified, as well as those that dispose of PFAS or PFAS-containing materials, generators and parties that arranged for their disposal or transport, along with transporters of PFAS-containing materials or waste, would be held liable. Given the ubiquity of PFAS in products and waste materials, including wastewater, the potential scope of CERCLA liability is vast.

The rule designating PFOA and PFOS as hazardous substances is expected to be finalized within the next few weeks, and the EPA is considering taking additional future actions to integrate PFAS into CERCLA's defined hazardous substances. Holland & Knight covered the EPA's most recent action on this front in a previous blog post.

Senate Committee Hearing

On March 20, 2024, the U.S. Senate Committee on Environment and Public Works (EPW) convened a hearing, "Examining PFAS as Hazardous Substances." During the hearing, senators spoke with the following witnesses:

  • Kate R. Bowers, Legislative Attorney, American Law Division, Congressional Research Service
  • Scott Faber, Senior Vice President of Government Affairs, Environmental Working Group
  • James Kenney, Secretary, New Mexico Department of Environment
  • Michael D. Witt, General Counsel, Passaic Valley Sewerage Commission (testifying on behalf of the Water Coalition Against PFAS)
  • Robert Fox, Partner, Manko Gold Katcher Fox LLP (testifying on behalf of the National Waste & Recycling Association (NWRA) and the Solid Waste Association of North America (SWANA))

The witnesses, along with EPW Committee members, discussed the sweeping impacts this rule would have for producers, end-users and the American public. EPW Committee Chair Tom Carper (D-Del.) and Ranking Member Shelley Moore Capito (R-W.Va.) alike discussed concerns about passive receivers of PFOA and PFOS being held liable for contamination when they are not responsible for causing the PFAS contamination. The primary passive receivers of concern were water systems and waste management utilities responsible for cleaning the nation's water supply, but Sen. Capito demonstrated the broader array of passive receivers by submitting more than 250 letters from potentially affected entities to the record. Similar concerns were raised by the U.S. Chamber of Commerce in a coalition letter sent to the EPW Committee in preparation for the hearing. The letter highlighted the costs posed to municipal utility services and how those costs would be offset to their communities.

In response to these concerns, Chair Carper discussed how the EPA has never pursued CERCLA action against passive receivers, and that trend should be guaranteed in this case through explicit definitions of who is responsible for PFAS contamination. In her opening statement, Sen. Capito advocated for a "polluter pays" approach to regulating PFAS, a core tenant of CERCLA, but due to its sweeping implications, it has been used as a "last stop" for regulating harmful substances, only to be used after other avenues have failed. Throughout the hearing, other committee members and witnesses reiterated how CERCLA actions should be taken solely against those responsible for PFAS contamination. To ensure effective enforcement, committee members pitched protections for passive receivers under CERCLA, as well as echoing Sen. Capito's approach of pursuing alternative regulatory avenues before CERCLA.

The resounding message of the hearing was that due to the environmental and health issues associated with PFAS exposure, the federal government must act to mitigate the release of PFAS compounds. That said, due to the extent to which these chemicals are present in waterways, the approach taken must strategically target those who are actively responsible for contamination, sparing entities that passively receive these compounds. This will require interbranch collaboration, along with using tools outside of CERCLA such as the Clean Water Act (CWA) and Safe Drinking Water Act (SDWA), to maintain a comprehensive and effective enforcement strategy. Despite disagreements on the specific policies enacted to mitigate PFAS, senators on both sides of the aisle supported a clear, multifaceted approach to PFAS mitigation to protect the public from adverse health outcomes.

Finally, disagreements over whether to legislatively carve out passive receivers from CERCLA liability that were on display at the hearing cast further doubt on the potential for progress with the PFAS legislation that was drafted by Sens. Carper and Capito released in June 2023. That effort has stalled, as negotiations over how to deal with passive receivers have yet to materialize a clear path forward.

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