By Jay Landers

In September 2022, the U.S. Environmental Protection Agency proposed listing certain perfluoroalkyl and polyfluoroalkyl compounds as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act — the law governing the federal contamination remediation program commonly known as Superfund. The move heightened concerns among municipalities and utilities that they could be held liable for CERCLA cleanups other entities have to undertake as a result of PFAS that they have passively received from upstream sources that were discharged as part of normal operations.

Responding to these concerns, Sen. Cynthia Lummis, R-Wyo., introduced several bills in early May that would protect drinking water, wastewater treatment, solid waste, recycling, and compost facilities, as well as agricultural producers, from CERCLA liability pertaining to PFAS.

Lummis also introduced legislation that would protect airports and entities with fire suppression systems, two groups that have been legally required to use products that contain PFAS compounds.

EPA’s proposal

The class of compounds known as PFAS comprises a group of thousands of human-made chemicals used in industrial processes, firefighting activities, and consumer products, including makeup, fabrics, food packaging, stain repellents, and nonstick coatings on cookware. Highly mobile in the environment and often referred to as “forever chemicals” because of their long-lasting nature, PFAS compounds are believed to pose a risk to human health at certain levels.

On Sept. 6, the EPA proposed to designate two common types of PFAS — perfluorooctanoic acid and perfluorooctanesulfonic acid — as hazardous substances under CERCLA. In its proposed rule, the EPA noted that exposure to these, known by their acronyms PFOA and PFOS, “can lead to adverse human health effects, including high cholesterol, changes in liver enzymes, decreased immune response to vaccination, thyroid disorders, pregnancy-induced hypertension and preeclampsia, and cancer (testicular and kidney cancer for PFOA, liver and thyroid cancer for PFOS).”

If finalized, the rule would enable the EPA to administer Superfund cleanups of sites contaminated with PFOA or PFOS.

To this end, the agency could compel potentially responsible parties to address PFOA or PFOS releases that “pose an imminent and substantial endangerment to public health or welfare or the environment,” according to the proposed rule. Under the “polluter-pays model” of Superfund, the EPA could recover cleanup costs from potentially responsible parties to minimize the amount of taxpayer funding needed to remediate contaminated sites. In some cases, private entities subject to these requirements could seek to recover cleanup costs from other potentially responsible parties.

In its Sept. 6 proposed rule, the EPA listed multiple “potentially affected U.S. industrial entities,” including aviation operations, firefighting foam manufacturers, waste management and remediation services, and wastewater treatment plants.

Limiting liability

On May 3, Lummis introduced five bills that would protect certain entities against Superfund liability related to PFAS contamination:

The legislation, copies of which are available on Lummis’ website, was referred to the Senate Committee on Environment and Public Works. All five of the bills are co-sponsored by seven Republican senators, all of whom serve on the Environment and Public Works Committee.

Each bill seeks to allay the liability concerns of sectors that either passively receive PFAS from other sources or have been required to use products containing PFAS as part of their operations.

“There is no doubt we need to consider the environmental impacts of PFAS chemicals but suing entities who did not contribute to the contamination is overkill, especially considering some of these entities, such as ranches and water facilities, are just downstream receivers,” Lummis said in a May 4 news release.

The bills would amend CERCLA to protect the various sectors from PFAS-related liability under certain circumstances. For example, the Resource Management PFAS Liability Protection Act would exempt solid waste management and compost facilities from Superfund liability for PFAS, provided that the facilities operated in accordance with applicable laws and did not act with “gross negligence or willful misconduct in the discharge, disposal, management, processing, conveyance, or storage of” materials containing PFAS, according to S. 1429.

The Water Systems PFAS Liability Protection Act and the Agriculture PFAS Liability Protection Act would provide similar exemptions for water and wastewater systems and agricultural producers, respectively. Meanwhile, airports would receive similar liability protection provided that their PFAS releases “resulted from the use of an aqueous film forming foam” that was required by the U.S. Federal Aviation Administration and carried out “in accordance with (FAA) standards and guidance on the use of that substance,” according to S. 1433.

Finally, the Fire Suppression PFAS Liability Protection Act would exempt from CERCLA liability entities having a “fire suppression system installed, or otherwise in use, in accordance with applicable Federal, State, and local fire codes that uses an aqueous film forming foam that contains a covered perfluoroalkyl or polyfluoroalkyl substance,” according to S. 1432. However, this exemption would only pertain to PFAS releases involving a “lawful discharge” from fire suppression systems that conform with all relevant fire codes and are “compliant with the most recently approved engineering standards at the time of the discharge,” the bill states.

Strong support from water groups

The Water Systems PFAS Liability Protection Act enjoys the strong support of multiple organizations representing different facets of the water sector, including the American Water Works Association, the Association of Metropolitan Water Agencies, the National Association of Clean Water Agencies, the National Rural Water Association, and the Water Environment Federation. The five groups have formed an entity known as the Water Coalition Against PFAS.

In a May 2 letter to Lummis, the coalition members note that her Water Systems PFAS Liability Protection Act is needed to protect drinking water, wastewater, and stormwater system ratepayers “from incurring the likely billions of dollars of costs of cleaning up environmental PFAS pollution caused by others.”

As “innocent receivers of PFAS contamination from upstream polluting industries and PFAS-laden products,” drinking water systems end up with residuals containing PFAS that must be disposed of in a landfill or other facility, the May 2 letter notes.

If a landfill or other facility that serves a drinking water provider became a Superfund site because of PFAS, then the drinking water system “could be treated as a PFAS polluter — and be responsible for a portion or even all the cleanup costs — forcing local ratepayers to cover the cleanup bill after they already paid to remove the contaminants from their source water,” according to the letter.

“Wastewater and stormwater utilities would face similar liability through no fault of their own because they either receive PFAS chemicals through the raw influent that arrives at the treatment plant or through the municipal stormwater runoff that they manage,” the May 2 letter states.

“The impacts PFAS CERCLA hazardous substance designations could have on the ability of the water sector to deliver affordable water services cannot be overstated,” said Adam Krantz, NACWA’s CEO, in Lummis’ May 4 release.

“Water utilities and ratepayers should not be liable for sites contaminated with PFAS,” said David LaFrance, the CEO of the AWWA, in the May 4 release. “Polluters manufacturing, using, and profiting from these chemicals should be held responsible for the contamination that they created.”

The AMWA supports S. 1430 because it would close the “loophole” that could enable polluting industries to pass off the costs of addressing PFAS contamination to “innocent water system ratepayers,” said Tom Dobbins, the group’s CEO, in the May 4 release.

Airport, solid waste groups also in favor

Organizations representing airports and waste management agencies also expressed vocal support for Lummis’ legislation. The Airports PFAS Liability Protection Act provides “U.S. airports with appropriate liability protection due to the longstanding federal requirements that airports use firefighting foam containing PFAS,” said Kevin Burke, the president and CEO of Airports Council International–North America, in Lummis’ May 4 release.

For airports, this protection from CERCLA liability for PFAS is “critical in speeding the transition to fluorine-free firefighting foams,” said Todd Hauptli, the president and CEO of the American Association of Airport Executives, in the May 4 release.

The National Waste & Recycling Association “has consistently sought relief from CERCLA liability for PFAS at landfills,” said Darrell Smith, the NWRA’s president and CEO, in the May 4 release. “We believe a narrow exemption for the municipal solid waste industry serves to keep CERCLA liability on the industries that created the pollution.”

Enforcement discretion?

For its part, the EPA has indicated that it would pursue under CERCLA those entities originally responsible for creating PFAS and not downstream receivers of the contaminants. For example, Michael Regan, the EPA administrator, testified at a May 10 hearing held by the Environment, Manufacturing, and Critical Materials Subcommittee of the House Committee on Energy and Commerce that his agency would use “enforcement discretion” when it comes to enforcing the law in such situations.

“The bottom line is we have enforcement discretion,” Regan said. “We believe that CERCLA gives us that enforcement discretion. I want to be clear that the water utilities and our farmers and agriculture are not the target, but the target is those who are putting this pollution into our air and our water.”

That said, the members of the Water Coalition Against PFAS counter that the EPA’s policy of enforcement discretion “will be wholly insufficient to ensure that drinking water and clean water utility customers will not be faced with potentially catastrophic CERCLA legal defense costs and cleanup liability for PFAS,” they maintained in their May 2 letter. Industry “has already publicly indicated that it will use every legal means available to it to require public agencies to pay for PFAS cleanups,” they wrote.

The groups are right to doubt the extent to which EPA enforcement discretion would protect them from Superfund liability for PFAS, says John Gardella, a shareholder at the law firm CMBG3 Law LLC and an attorney who specializes in PFAS litigation. The very structure of the law itself precludes the type of discretion that the EPA proposes to employ, Gardella says.

“Under CERCLA, it technically does not matter that some of the groups — waste and water —  were ‘passive receivers’ of PFAS, as CERCLA requires the EPA to pursue parties for cleanup costs on sites where designated ‘hazardous substances’ — here, PFOA and PFOS — are present,” Gardella says. “Airports, too, have historically used large quantities of PFAS via aqueous film forming foam, but the fact that they were in fact required to do so is not a strict defense if they were pursued under CERCLA,” he notes.

“While the EPA has publicly said that it intends to use its regulatory discretion to choose who to pursue or not to pursue, the fact of the matter is that, legally, CERCLA would require EPA to pursue any polluters if land was found to contain the designated hazardous substances,” Gardella says. “If EPA ignores certain sites, it would likely in turn face lawsuits from environmental groups or even private citizen groups who would allege that the EPA is not carrying out its mandates under CERCLA.”

At the same time, at least one environmental group stands ready to oppose passage of Lummis’ bills. “We've never amended CERCLA to exempt potentially responsible parties from specific contaminants before, and now is not the time to start,” says Christine Santillana, the legislative counsel for the public interest environmental law organization Earthjustice.

“Having CERCLA liability incentivizes facilities to use the tools they have to keep PFAS out of the environment in the first place,” Santillana says. “Many of these facilities and industries seeking liability carve-outs have known about the dangers of PFAS for decades, but our communities have ultimately paid the price. CERCLA is an important statute that should remain intact, and those responsible for PFAS pollution — including facilities that are knowingly, not passively, receiving PFAS — should not escape liability.”

This article is published by Civil Engineering Online.

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Jay Landers