Urge Congress to Pass Liability Protections for Passive Receivers of PFAS

Action Needed:

Federal policymakers such as Congress and the U.S. Environmental Protection Agency (EPA) should work closely with state and local governments on any regulatory or legislative actions related to efforts to remove PFAS from the environment. Counties should urge Congress to pass legislation to provide liability protection to passive receivers of PFAS such as counties and other local governments.

Background:

PFAS are a class of toxic chemicals that have been used for various purposes, including commercial, industrial and U.S. military applications such as food packaging, nonstick coatings and fire suppressants used at U.S. military installations and airports and by state and local fire departments.
Research indicates that exposure to PFAS above certain levels, particularly perfluorooctanoic acid (PFOA) and perfluorooctane sulfate (PFOS), is associated with various adverse health effects. These include, but are not limited to, certain cancers, suppressed antibody response, reproductive problems and thyroid hormone disruption. PFAS chemicals are highly durable and can persist in the environment and the human body for years if exposed. PFOA and PFOS have been detected in soil, surface water, groundwater and public water supplies in numerous locations primarily associated with releases from manufacturing and processing facilities and from military installations and other facilities that use firefighting foams. As owners, users and regulators of water resources, counties play a key role in addressing public concerns associated with PFAS exposure.

EPA has taken several steps to address PFAS, including expanding nationwide monitoring of PFAS in drinking water, increasing data collection and initiating a national PFAS testing strategy. Much of EPA’s work is guided by the PFAS Strategic Roadmap, which was released in October 2021 and updated in 2024. The PFAS Strategic Roadmap sets key deadlines for the agency to take action and implement new policies to address PFAS.  

On April 19, 2024, EPA designated two PFAS chemicals, PFOA and PFOS, as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as the Superfund law. This designation authorizes the EPA to investigate releases of PFOA and PFOS and compel potentially responsible parties, including owners and operators of facilities and vessels, to clean up contaminated sites or to reimburse EPA for the cost of cleanup. EPA released an enforcement discretion policy alongside the final rule stating that it will focus its enforcement actions on entities that significantly contributed to the release of PFOA and PFOS into the environment, including manufacturers of PFAS, parties that have used PFAS in the manufacturing process and other industrial users. 
However, the enforcement discretion policy does not prevent other potentially responsible parties from suing county governments to recover cleanup costs. Additionally, the policy is not legally binding and future administrations could choose to revoke or ignore it. This final rule could place an economic burden on counties, as PFAS is often suspended in the environment and accumulates in county-owned water systems and waste facilities. Given the pervasiveness of PFOA and PFOS, county governments, water utilities and landfills could be held subject to the rule’s reporting and financial liability requirements despite having no hand in manufacturing or distributing PFAS.

Key Talking Points: 

• As owners, users and regulators of water resources, counties are directly impacted by federal regulation and legislation regarding PFAS.
• Counties support efforts by EPA and other federal agencies to study the health and environmental impact of PFAS compounds.
• As EPA takes regulatory action, counties urge the administration to work closely with state and local governments throughout the process.
• As Congress considers legislation to address PFAS, counties urge Congress to pass legislation that provides liability exemptions under CERCLA for passive receivers of PFAS such as counties.