The U.S. Senate Committee on Environment and Public Works held a hearing to discuss liability concerns for passive PFAS receivers, like water/wastewater utilities and landfills. The hearing, “Examining PFAS as Hazardous Substances,” comes as the EPA looks to list PFAS chemicals as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The hearing is the latest in a series of stakeholder meetings led by Chairman Tom Carper (D-Delaware) since the bill he introduced with Ranking Member Shelly Moore Capito (R-West Virgina), last July.

Chairman Carper made opening comments to a packed crowd with standing room only in the Senate hearing room. Senators came and went and Carper ensured they were all allowed time to comment or ask questions of the panel. Carper stressed his desire to find bipartisan solutions to the problem of PFAS in the environment by looking at the impacts and unintended consequences of regulating PFAS under CERCLA. He even cited the Minnesota study (Groundbreaking study shows unaffordable costs of PFAS cleanup from wastewater | Minnesota Pollution Control Agency (state.mn.us)) comparing the cost to purchase a pound of PFAS on the market versus the cost per pound to remove it from wastewater.

Senator Capito also spoke before the panel. She said she understood that CERCLA was intended to make polluters pay the cost of cleaning up contamination. But she noted that she was concerned that by EPA moving ahead with the use of CERCLA for PFAS -- despite the Agency’s written and repeated statements that it will use its discretion to leave peripheral players like WRRFs out of enforcement actions -- would leave no shield for passive receivers. She acknowledged that this is a very complicated issue. She submitted over 200 letters from “passive receivers” into the record. That likely included the joint letter NEBRA signed with the National PFAS Receivers Group along with NEWEA and all the Northeast states.

Several panelists with varied perspectives were invited to submit written and oral testimony before the Committee. The Honorable James Kenney, Secretary of the New Mexico Department of Environment, made the point that CERCLA is the wrong policy tool to use. Kate R. Bowers, an attorney with the Congressional Research Service, dispelled some key myths about liability under CERCLA. Senior Vice President of Government Affairs for the Environmental Working Group (EWG), Scott Faber testified about how PFAS manufacturers “concealed their harm” from everyone, including Congress. But he went on to state that “instead of passive receivers taking action to reduce releases,” industry leaders “are now urging you to create more loopholes”.

Michael D. Witt, General Counsel for Passaic Valley Sewerage Commission, testified on behalf of the Water Coalition Against PFAS which includes WEF, NACWA, and others. Witt testified about the CERCLA litigation his New Jersey utility was drawn into over dioxide contamination due to major sources within the sewer system. Passaic has been in litigation since 2016 and has spent about $4.6 million to date defending itself. He took offense to the EWG testimony suggesting that WRRF owners and operators would not do the right thing if there were liability exemptions, saying he found that insulting. He pointed out that WRRFs are public utilities operating under Clean Water Act permits and other requirements.

Robert Fox, an environmental attorney who has worked for numerous utilities and teaches about CERCLA as an adjunct professor at the University of Pennsylvania School of Law and a summer lecturer at the Vermont Law School, was the last to testify.  He was representing the National Waste and Recycling Association and the Solid Waste Association of North America with his testimony. He spoke to the very interdependent relationship between landfills and WRRFs when it came to PFAS. He predicted that if PFAS are designated hazardous under CERCLA, landfills will start refusing biosolids.

Other Senators making comments or asking questions included Senator Peter Rickett (R-Nebraska), Senator Debbie Stabenow (D-Michigan), Senator Ben Cardin (D-Maryland), Senator Alex Padilla (D-California), Senator Jeff Merkley (D-Oregon), and Senator Cynthia Lummis (D-Wyoming). Senator Whitehouse (D-Rhode Island), an attorney, had some questions for the CRS attorney about proactive steps the WRRFs and others can take to protect themselves from CERCLA liability. The CRS staffer reviewed the current exemptions for permitted releases, for example, and did not make the case that those would be protective.

In response to questions, Mr. Fox further drove home the need for some limited exemptions in the law, which is not unprecedented. He mentioned the two existing exemptions that cover WRRF and landfill operations – that is, the exemption for normal application of a fertilizers and the exemption for federally-permitted activities (e.g., NPDES permits) – are not valid if PFAS was not included in the permits.

Before leaving the hearing, Senator Capito said there seemed to be agreement that passive receivers should not pay, that the manufacturers need to be held accountable. At the end of the hearing, Senator Carper said, for the record, that Committee members would have until April 3rd to submit additional questions for the panel and replies would be due back to the Committee by April 17th.  Copies of the written testimony, as well as the recording of the hearing, can be found here: Examining PFAS as Hazardous Substances - Hearings - U.S. Senate Committee on Environment and Public Works.

The draft bill has many components, such as setting a September 30, 2024, deadline for EPA to set drinking water standards for specific PFAS substances. The bill seeks to improve tracking of industrial users of PFAS at the state level and establish grant programs for the development of treatment technologies for PFAS. Significantly, the bill creates a “prize competition” to encourage innovation in the development of technologies that can help identify PFAS in the environment, prevent further contamination, and remediate or destroy PFAS.  The draft bill does not currently contain any exemptions for passive receivers.

In a related news item, there is a proposed law in Minnesota that attempts to address this exact issue, providing limited protections for “involuntary conveyors of PFAS”. SF 4577 as introduced - 93rd Legislature (2023 - 2024) (mn.gov)