On March 20, 2024, the U.S. Senate Committee on Environment and Public Works convened a hearing into the impacts of designating PFAS chemicals as hazardous substances under the Comprehensive Emergency Response, Compensation, and Liability Act (CERCLA).
The hearing underscored two indisputable facts. First, the U.S. Environmental Protection Agency (USEPA) is taking an unprecedented step of designating PFAS in a manner that bypasses the usual policymaking approach of first defining a chemical as a hazardous waste under Resource Conservation and Recovery Act (RCRA) or other environmental statutes. Second, USEPA’s proposed approach to use its discretionary authority not to enforce against passive receivers would fail to protect against third party litigation.
Observations
The hearing revealed a general consensus among both committee members and witnesses that the question of CERCLA liability is significant and challenging. Chairman Tom Carper (D-DE) noted his desire to protect human health and the importance of ensuring drinking water standards are in place. He noted the importance of reaching a bipartisan solution. Ranking Member Shelley Moore Capito (R-WV) agreed on the vital need for standards, but noted that developing protections for passive receivers, especially in the instance of smaller communities that cannot afford litigation, is necessary as part of any solution. The other committee members who attended generally focused on the elements of liability under varying scenarios and the importance of developing treatment technologies.
Overall Takeaway and Outlook
At the conclusion of the hearing, it appears the committee is no closer to developing language to address passive receivers. However, it is equally clear the committee has a better understanding of the liability threats posed by any designation to passive receivers. Committee leadership did not endorse nor rebuff the possible scenario of waiting until after USEPA releases their final rule to address the issue of liability exemption.
Summary of Witness Statements
The witnesses’ statements reviewed and documented examples of how CERCLA liability could capture passive receivers and result in tens of millions of dollars in litigation costs over years, if not decades in some instances, of litigation. In making a case for immediate designation of PFAS and quell potential liability concerns, the E-NGO witness emphasized USEPA’s commitment to use its discretionary enforcement authority to not pursue utilities and other passive receivers. In response, water, wastewater, solid waste, and the Congressional Research Service witnesses rebuffed the assertion, agreeing that such an approach would not eliminate litigation exposure.
Additionally, witnesses noted that the only way to secure protection from CERCLA liability would be to agree to become part of a settlement agreement with USEPA that would, perversely, make the passive receiver a responsible party to any settlement. It was noted, though, that even under such a scenario, the passive receiver is still exposed to possible litigation by entities not part of the settlement agreement with USEPA.
Copies of the witness statements and hearing video can be downloaded on the committee’s webpage.
Provided by Layne Baroldi, VBC Member and Vice President, Technical Services and Government Affairs, Synagro