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Senate hearing on hazardous substance listing for PFAS finds common ground, but disagreements on implementation tactics

The Senate Committee on Environment and Public Works held a hearing on March 20, 2024, reviewing the issues and possibilities for designating PFAS as hazardous substances under the federal Superfund law. The testimony of witnesses and the Senators themselves largely agreed on the designation, but diverged on questions of liability exemptions.

BY WALKER LIVINGSTON, ESQ | MAR 20, 2024 6:45 PM CDT

Background: PFAS

  • Per- and polyfluoroalkyl substances (PFAS) are a large class of synthetic fluorinated organic compounds. PFAS can repel oil and water and are produced for use as surface treatments for soil, stain, and water resistance; for textiles, paper, and metals; and most notably for fire suppression foams (aqueous film-forming foams, or AFFFs). They are used in cleaning products, cookware, leather, paint, and wire insulation.
  • PFAS are water-soluble, which means that the chemicals can easily migrate long distances in groundwater or surface water. PFAS are also persistent in the environment and do not break down readily, since the carbon-fluorine bonds that hold the molecules together are extremely strong.

Background: CERCLA

  • In 1980, Congress passed the Comprehensive Environmental Response, Compensation and Liability Act ( CERCLA or Superfund). The act establishes a liability scheme to authorize the federal government to clean up contaminated sites in the country and force potentially responsible parties (PRPs) to pay for those cleanup costs.
  • CERCLA authorizes the President to respond in circumstances where there is a release or threatened release of a hazardous substance into the environment or the actual or threatened release of a substance that may endanger public health and welfare. This response authority is delegated to the EPA, which acts as the primary enforcer of CERCLA. EPA responses fall into two general categories: removal actions, short term actions to address immediate risks, and remedial actions, long-term actions meant to completely remove contamination from a site.
  • Section 107 of CERCLA covers liability for four different types of PRPs: (1) current owner or operators of a facility (or vessel), (2) a person who owned or operated a facility at the time hazardous substances were disposed of, (3) a person who arranged for the disposal or treatment of hazardous substances at a facility, and (4) a person who transported hazardous substance for disposal or treatment at a facility.
  • CERCLA liability is strict, retroactive, and joint and several. This means that a polluter is liable whether or not they knew they were polluting, the federal government may “look back” on previous polluters at the site, and that all polluters can be targeted for all costs at the site.

How the agency plans to regulate PFAS via CERCLA

  • In late 2021, the EPA published the PFAS Strategic Roadmap, which laid out the planned PFAS strategy for the agency between 2021 and 2024. The roadmap set timelines for the agency to develop new policies, protect the environment, and research the impacts of PFAS. Under the PFAS roadmap, the Office of Land and Emergency Management (OLEM) planned to designate perfluorooctanoic acid (PFOA) (CAS RN 335-67-1) and perfluorooctanesulfonic acid (PFOS) (CAS RN 1763-23-1) as hazardous substances under CERCLA. The office announced the proposed designation on September 6, 2022.
  • In the EPA’s proposed rulemaking designating PFAS as hazardous substances under CERCLA, the agency noted the chemicals may present a substantial danger to public health or welfare, including several adverse human health effects (e.g., high cholesterol, changes in liver enzymes, decreased immune response to vaccination, thyroid disorders, and cancer). The agency stated that it believes the weight of evidence was more than sufficient to satisfy the CERCLA section 102(a) standards.
  • On April 13, 2023, the EPA announced that it was seeking input on listing seven additional PFAS under CERCLA: perfluorobutanesulfonic acid (PFBS) (CAS RN 375-73-5), perfluorohexanesulfonic acid (PFHxS) (CAS RN 355-46-4), perfluorononanoic acid (PFNA) (CASRN 375-95-1), hexafluoropropylene oxide dimer acid (HFPO-DA or GenX) (CAS RN 13252-13-6), perfluorobutanoic acid (PFBA) (CAS RN 375-22-4), perfluorohexanoic acid (PFHxA) (CAS RN 307-24-4), and perfluorodecanoic acid (PFDA) (CAS RN 335-76-2). In addition, the EPA also requested information on designating the precursors to PFOA, PFOS, and the seven PFAS included in ANPRM, as well as “categories of PFAS.”
  • The White House’s Office of Information and Regulatory Affairs (OIRA) is currently reviewing the designation. OIRA review typically takes about 90 days; the office received the rule on December 6, 2023. This means that the agency has pushed passed the average (and expected) time for the review, but with the agency’s will to release additional rules on PFAS, this could occur within the next several weeks.

Major takeaways from the March 20, 2024, hearing

  • On March 20, 2024, the Senate Committee on Environment & Public Works (EPW) held a hearing entitled Examining PFAS as Hazardous Substances, focusing on the future CERCLA listing for PFAS, led by Chairman TOM CARPER (D-Del.) and Ranking Member SHELLEY MOORE CAPITO (R-W.Va.). The hearing also featured questions from BEN CARDIN (D-Md.), DEBBIE STABENOW (D-Mich.), PETE RICKETTS (D-Neb.), CYNTHIA LUMMIS (R-Wyo.), ALEX PADILLA (D-Calif.), JEFF MERKLEY (D-Ore.), and SHELDON WHITEHOUSE (D-Md.). The hearing featured testimony by KATE BOWERS, American Law Division, Congressional Research Service (CRS); SCOTT FABER, Senior Vice President of Government Affairs, Environmental Working Group (EWG); JAMES KENNEY, Secretary, New Mexico Department of Environment; MICHAEL WITT, General Counsel, Passaic Valley Sewerage Commission (testifying on behalf of the Water Coalition Against PFAS); and ROBERT FOX, Partner, Manko Gold Katcher Fox LLP (testifying on behalf of the National Waste and Recycling Association & Solid Waste Association of North America).
  • The testifying witnesses and the senators broadly agreed on plans to designate PFOA and PFOS as hazardous substances, but disagreed on some specifics of how that designation, and resulting litigation to recover cleanup costs, should work. Both Carper and Capito highlighted the urgency of PFAS regulations, and both had concerns about public utilities that may receive PFAS being unintentionally swept into CERCLA litigation over PFAS.
  • Regulating PFAS under the Resource Conservation and Recovery Act (RCRA) and other statutes was an idea that generally found favor among senators and the testifying witnesses. The EPA has previously not designated a chemical (or group of chemicals) under CERCLA authority without also designating the chemical under another authority (such as RCRA or the Safe Drinking Water Act). Multiple testifying witnesses and Senators expressed concern that this approach “puts the cart before the horse” and pushes the EPA into unknown territories.
  • Granting blanket exemptions to “passive receivers” of PFAS generated support from some witnesses, but skepticism from others. Fox and Witt testified in support of a Congressional exemption for landfills, water utilities, and other receivers of PFAS that do not manufacture the substances. Faber, though, argued that the exemptions should be handed out on a case-by-case basis after the entity has settled with the federal government, where it could be covered by another exemption. Fox and Witt responded skeptically to this proposal, noting that the federal government is often slow and inefficient at processing these settlements, potentially inserting significant obstacles for receivers to reduce their liability.

Kenney testimony

  • Kenney, New Mexico’s secretary of the environment, gave testimony focused on state implementation issues, particularly those faced by New Mexico. Kenney has worked in federal and state agencies for over 20 years, mostly focused on chemical plants and defense facilities. He argued that utilizing RCRA to address PFAS was a more “common sense foundation” to regulating PFAS as opposed to first implementing the CERCLA requirements. This is partially because RCRA is largely implemented by the states, he said, whereas CERCLA is implemented by the EPA along with other federal agencies that have less involvement with the EPA and states.
  • Kenney noted that on his fifth day on the job, New Mexico was sued to undermine RCRA authority for the cleanup of PFAS by the United States. According to his testimony, New Mexico is now in the fifth year of the lawsuit, has spent $8 million on defensive litigation, and has about $3.7 billion dollars of its agricultural industry threatened by migrating PFAS plumes. Additionally, Kenney noted that New Mexico has paid $850,000 to defray disposal costs for euthanized cows poisoned with PFAS (with the expected loss of revenue and expenses potentially reaching close to $6 million).
  • Kenney also argued that Congress should modify CERCLA and the Defense Environmental Restoration Program (DERP) so that EPA is the sole responsible implementing agency.

Bowers testimony

  • Bowers, of the Congressional Research Service, gave testimony heavily focused on how CERCLA worked, providing a cogent analysis for the panel on liability, potentially responsible parties, definitions of releases and hazardous substances, and more. Unlike several other testifying witnesses, Bowers was not there to advocate for a viewpoint, but instead served as a key resource for EPW on any questions about how the agency has utilized its CERCLA authorities, and how reforms advocated for by other witnesses may impact CERCLA and the EPA’s ability to implement it.

Faber testimony

  • Faber of EWG provided testimony aimed at the human effects of PFAS, and how the EPA can work to better hold polluters accountable. Faber brought NORA STRANDE, sister of AMARA STRANDE, who died in 2023 from fibrolamellar hepatocellular carcinoma. Following the latter Strande’s death, the Minnesota legislature named a bill focused on targeting PFAS after her. Faber’s testimony similarly touched on how PFAS is present in almost everyone’s blood – with no one giving consent.
  • Faber emphasized that “legal loopholes are the problem, not the solution” when it comes to CERCLA. He explained that the EPA has consistently stated that it does not plan to use its enforcement authority for landfills and water utilities, and that creating loopholes in Superfund will remove “a powerful incentive” for the government and pressure water utilities and landfills to be better stewards for hazardous substances. Faber argued that Congress has never created a Superfund exemption for a specific chemical in the past, and that it should not do it now.

Witt testimony

  • Witt, representing the Water Coalition Against PFAS, gave testimony arguing that the current plan, without a specific exemption for water utilities, would require ratepayers to have to eat the costs of CERCLA cleanup. Witt noted that his coalition is asking Congress to provide water systems with liability protections under CERCLA, since utilities that comply with their federal permits may still be subject to liability under CERCLA (and permits would likely have to directly address CERCLA exemption).
  • Witt cited the Passaic River’s long history in the Superfund program, where a former Diamond Alkali plant dumped dioxins into the river as a byproduct of Agent Orange production. Like PFAS, the water commission did not manufacture the substance or profit from it, but litigation has dragged on for decades with the commission and many other public entities getting dragged into the fight.

Fox testimony

  • Fox’s testimony focused on landfills and other waste facilities that receive PFAS. Fox, testifying on behalf of the National Waste and Recycling Association & Solid Waste Association of North America, argued that listing PFAS compounds directly as CERCLA hazardous substances has not happened before, and that this could be an issue in the future as they historically have not been regulated via other statutes, like RCRA. Fox argued that the RCRA standards should be finalized prior to CERCLA standards.
  • Fox also asserted that exemptions were nothing new and that Congress has exempted various parties over the past 40 years based on liability issues. Additionally, Fox noted that if EPA settles with a passive receiver and provides those parties with statutory contribution protection, that will not save the receiver from contribution litigation for cost recovery actions for other parties that have not been sued or settled yet with the EPA. Fox asserted that therefore, EPA’s enforcement discretion to not go after receivers of PFAS was insufficient.

General testimony and questions

  • Carper noted the differences in opinions and asked how to find consensus between the parties. Kenney stated that there was consensus from the panel that if regulations coming from the Clean Air Act, Clean Water Act, and RCRA were built first, CERCLA liability could be layered on top for better production. Faber argued that the agency should quickly finalize its drinking water standards, which would provide more of a basis to build off. Fox took the position that listing PFOA or PFOS in CERCLA prior to listing them in other statutes was not the right move, and that regulating the chemicals under other authority first would be the right thing to do, partially echoing Kenney’s thoughts.
  • Capito questioned Witt on enforcement discretion and the potential pitfalls that can occur even when the EPA is not targeting an entity. Witt explained that his water commission had been brought into another case for contribution in 2016, and that the commission had spent $4.6 million in legal fees defending the case against a contaminant that the commission did not release into the river (and was not targeted by the EPA). However, Witt said, the commission was still “force marched” through the lawsuit.
  • Capito also targeted the proposed drinking water standard (NPDWR) for six PFAS that the EPA also plans to release in the future, and problems that may disproportionately affect small drinking water systems. Kenney posited that the regulations would be a lodestar; utilities would be required to invest in upgrades to meet the standards, but the compliance period could also spur innovation in the sector to reduce the costs of treating PFAS. According to Fox, the regulations could have a disproportionately large negative affect on small drinking water systems, where water systems that undertake required investments to remove PFAS would still have issues on where they can send PFAS-contaminated materials after they are collected (spent granular activated carbon (GAC) filters, for example). Witt agreed that the regulation was an important step forward and needed to happen, but it was a matter of “putting the right regulation in place at the right time.”
  • Stabenow questioned the witnesses on issues working with the Department of Defense (DOD), and how the regulation might impact military and defense facilities around the country. One of the benefits that Kenney noted with the addition of CERCLA is that the DOD would be required to disclose information on the presence of PFOA or PFOS in groundwater when it transfers a property to civilians, which would allow for additional transparency about contamination in the future.
  • Ricketts targeted Faber regarding passive receivers, pushing him on whether the EWG’s advocacy went past the “polluter pays” standard. Faber explained that he thought it was misleading to label all utilities and landfills as “passive receivers,” and that some systems, like those in Flint, Michigan or Jackson, Mississippi, may not fit the bill for being considered completely passive receivers of PFAS. Ricketts also questioned Fox on agricultural issues, and Fox explained that current exemptions would not cover farmers or agricultural entities for PFAS released in sewage sludge and spread over fields, which could potentially impute significant liability in the future.
  • Cardin questioned what Congress could do to stop the pollutants and deal with the public health challenges faced by exposure to PFAS. Faber noted the $10 billion from Congress under the Bipartisan Infrastructure Law will help water systems deal with PFAS, as well as the settlements in the South Carolina multi-district litigation (MDL) that will pay out to municipalities, but that states and Congress will have to pay more in the future.
  • Padilla questioned Kenney further on the enforcement discretion for PFAS, with the secretary giving answers on how the agency has historically used its enforcement discretion, mirroring previous questions on how the EPA will enforce a PFAS CERCLA designation in the future. Lummis, Merkely, and Whitehouse posed additional questions regarding the enforcement discretion, with witnesses responding with explanations on how a national enforcement policy may or may not adequately protect receivers of PFAS like water systems or landfills.

Other takeaways from the hearing

  • The hearing did not include testimony from the EPA itself, or from chemical companies that may be targeted by Superfund litigation after the rule is finalized. The EPA has made it clear that it does not plan to go after landfills, water utilities, or other passive receivers of PFAS, but it is unlikely that the chemical companies that may be targeted would not target other parties that could be PRPs under the wide latitude of CERCLA liability. In this way, the hearing did not address how the agency may specifically enforce the litigation, as well as how public utilities and other receivers may be actually impacted by CERCLA litigation over PFAS in the future.
  • CERCLA exemptions for utilities and other passive receivers appear to be relatively popular with the senators, even if exemptions for a specific chemical have not been previously issued. Because of the ubiquity of PFAS and the current high costs for remediating and destroying the chemicals, an exemption could allow some level of “breathing room” for utilities that will likely already be saddled with upfront costs of remediating PFAS currently present in their facilities. If these exemptions are not implemented, utilities could well end up spending millions on third-party litigation with other PRPs to confirm that they are not responsible for CERCLA cleanup costs.

To contact the author of this analysis, please email Walker Livingston ( [email protected]).

To contact the editor of this analysis, please email Kari Oakes ( [email protected]).

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