Congress examines PFAS liability and cleanup regulations

Key Takeaways

On December 18, the U.S. House Energy and Commerce Subcommittee on Environment held a hearing examining the current statutory and regulatory landscape for PFAS. The hearing follows a similar hearing held by the U.S. Senate Environment and Public Works Committee on November 19. Both hearings focused on how to ensure that cleanup regulations for per- and poly- fluoroalkyl substances (PFAS) respected the concerns of passive receivers, especially municipally owned infrastructure. 

During the hearings, lawmakers expressed a bipartisan interest in legislation that would shield passive receivers from liability under federal law. NACo supports legislative action to protect public-interest and municipal passive receivers such as counties through a narrow liability exemption.

What are PFAS?

PFAS are a family of synthetic chemicals that have been manufactured and used in a variety of industrial and consumer settings since the 1940s. Commonly referred to as “forever chemicals,” PFAS can persist in the environment for decades and negatively affect human health. Exposure can occur in a variety of ways, including by breathing air containing PFAS, drinking water contaminated with PFAS and swallowing soil or dust contaminated with PFAS. 

On April 19, 2024, the U.S. Environmental Protection Agency (EPA) designated two common PFAS chemicals, PFOS and PFOA, as hazardous under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA; P.L. 96-510), also known as the Superfund law. Under CERCLA, the potentially responsible parties that manufactured or released PFAS chemicals into the environment can be held liable for cleanup costs. Despite having no part in manufacturing or distributing PFAS, counties could face significant compliance and remediation costs due to the presence of these chemicals at county-owned airports, in landfills and water systems.

Alongside the 2024 designation, EPA stated that its intention will be not to compel passive receivers such as counties to pay for PFAS cleanup costs under a policy of enforcement discretion. However, counties are not fully protected from liability as this policy is non-binding and could be revoked by future Administrations. The enforcement discretion policy also does not prevent other potentially responsible parties from seeking to hold counties liable to recover PFAS cleanup costs through CERCLA.

NACO PFAS HUB

Hearing Takeaways

In both hearings, lawmakers questioned witnesses about the impact of the CERCLA designation on local communities and economies, including whether EPA’s current discretionary enforcement policy would provide adequate long-term protection for passive receivers.  Republican and Democratic members from both chambers highlighted their shared belief that any legislative or regulatory fix should respect the “polluter pays” principle and avoid shifting cleanup costs onto ratepayer- or taxpayer-funded infrastructure or utilities.

At the U.S. Senate hearing, Chairman Shelley Moore Capito (R-W.Va) emphasized the committee would work to “enact a bipartisan solution to minimize future PFAS contamination, develop a clear path to destroy PFAS and protect passive receivers” and “provide a permanent statutory fix remove the burden of case-by-case settlements by providing lasting legal certainty.” In the U.S. House, both Energy and Commerce Chairman Brett Guthrie (R-Ky.) and Environment Subcommittee Chairman Gary Palmer (R-Ala.) spoke in favor of examining how the CERCLA designation is adversely impacting public-interest passive receivers.

NACo continues to advocate for legislative action that would codify a narrow liability exemption for counties and county-owned infrastructure under CERCLA for PFAS to ensure that local governments are not held financially responsible for cleaning up chemicals they had no role in manufacturing or distributing.