Senate Hearing Highlights PFAS Liability Concerns for Landowners

The U.S. Senate Environment and Public Works Committee (EPW) held a hearing on March 20 to examine per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The hearing examined the scope of the U.S. Environmental Protection Agency’s enforcement authority under CERCLA.

PFAS, commonly called “forever chemicals,” make up a small part of the many thousands of man-made chemicals first created in the 1930s and 1940s to make fluoropolymer coatings and products. PFAS are designed to repel water and oil, have high and low temperature stability and are used to reduce friction. These chemicals are commonly used in dry-cleaning and fire suppressant materials found on many retail center sites. The U.S. Environmental Protection Agency (EPA) recently released a proposal to designate PFAS as “hazardous substances” under CERCLA. CERCLA, which was enacted more than 40 years ago, was designed to address one hazardous substance at a time and assumed contamination in specific sites.  

ICSC believes CERCLA is not the right regulatory tool to address this important issue. The approach of directly regulating these substances under CERCLA, before they have been scientifically analyzed and considered for regulation under other federal environmental statutes, such as the Safe Drinking Water Act (SDWA) and Resource Conservation and Recovery Act (RCRA), is contradictory to EPA’s longstanding scientific and regulatory practice. EPA’s proposal short circuits the process that the agency has applied in every past hazardous substance designation, which has always followed after a chemical had been rigorously analyzed and listed under another environmental statute, such as the SDWA. This designation is also unnecessary from a practical standpoint as the EPA has ample existing authority to protect the public health and welfare and the environment from any potential risk posed by them without designating them as hazardous substances.

EPA’s proposal, which is likely to be finalized later this year, would have multiple negative, unintended consequences that would cause unnecessary impacts to communities and companies and is inconsistent with EPA’s goal of safely and efficiently addressing sources of PFAS in the environment that present risk. Listing PFAS as hazardous substances could potentially bring millions of landowners under CERCLA jurisdiction and prompt the reopening of Superfund sites around the country. It will also expose landowners to the threat of litigation related to the presence of these chemicals on sites for which these landowners had no responsibility. In addition, it will have a massive impact on the redevelopment of sites, including past and future brownfields sites. CERCLA imposes broad legal liabilities that can impact nearly anyone who interacted with a regulated substance whether they knew they were doing so or not. That means activist lawyers can go after homeowners, businesses, local governments and others even if they were unaware they had contamination on their property.

ICSC believes that EPA should address numerous issues prior to continuing this rulemaking, including: what levels of cleanup are feasible; the impact of such a designation on the redevelopment of brownfields sites, particularly in environmental justice communities; and how waste generated from site cleanups would impact passive receivers, such as drinking water systems and landowners.

ICSC’s Environmental and Land Use Committee has been advocating before key lawmakers on Capitol Hill to push back on EPA’s proposal and support legislative action to ensure that sound science is applied, public health is protected, and third-party liability is addressed. 

For more information or to get involved, please contact Abby Jagoda at ajagoda@icsc.com.