Lawmakers Appear Open to Contractor Carveouts for Superfund PFAS Liability

Lawmakers at a Nov. 19 congressional listening to signaled curiosity in addressing what development and engineering corporations in addition to water and wastewater utilities see as a significant danger—potential legal responsibility beneath the nation’s Superfund regulation associated to the elimination and remediation of the perpetually chemical compounds generally known as PFAS. 

The U.S. Environmental Safety Company in April 2024 designated two kinds of PFAS chemical compounds  – perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) – as hazardous beneath Superfund to require polluters to pay for his or her elimination and cleanup. 

Development and water teams have lengthy stated that designating the chemical compounds as hazardous beneath Superfund casts too extensive a web for accountable polluters, and that corporations and utilities with websites the place PFAS is later discovered may very well be on the hook for remediation prices and lawsuits. 

EPA issued a memo additionally in 2024 stating it will use its “discretion” in assessing legal responsibility, however development teams say that obscure company assurances should not ample. 

Leah Pilconis, basic counsel for the Related Normal Contractors of America, informed lawmakers that though contractors don’t manufacture PFAS, they regularly work on websites the place the chemical compounds may very well be current. 

“EPA’s ‘direct-to-Superfund’ designation of PFOA and PFOS as hazardous substances beneath [federal law] exposes contractors to vital authorized and monetary danger with out offering a transparent compliance path for the development business.” 

As a result of EPA has not issued clear and particular directions on soil focus ranges for PFAS chemical compounds  or correct disposal of soil with the chemical compounds, many undertaking house owners are selecting to not check for his or her presence on jobsites. “In consequence, contractors performing excavation, trenching and dewatering actions are caught with the danger of unknowingly dealing with PFAS and face cleanup legal responsibility or private-party litigation for contamination they didn’t create, couldn’t fairly detect and have obtained no federal path on how one can handle,” Pilconis stated. 

“Legal responsibility points should be addressed” each by EPA, with extra clear steerage, and by lawmakers on Capitol Hill, Senate Setting and Public Works Committee Chair Shelley Moore Capito (R-W. Va.) stated in her committee listening to opening assertion. “Congress should come collectively to enact a bipartisan resolution to reduce future PFAS contamination, develop a transparent path to destroy PFAS and defend passive receivers.”

Rating member Sheldon Whitehouse (D-R.I.) appeared to agree, noting, “If there’s a function for Congress to make sure that the precise folks pay to repair this drawback, then I stay up for working collectively to discover a resolution.” He added that EPA additionally must additionally adequately fund the state revolving fund mortgage applications that pay for cleanups. 

Capito stated there may be precedent for lawmakers and EPA to step in when Superfund legal guidelines have taken too broad a sweep on necessities. When legal responsibility considerations slowed cleanups of brownfields websites, “EPA used administrative settlements to guard harmless landowners and native governments. That very same authority exists at the moment,” she stated.

Kate Bowers, supervisory lawyer for the Congressional Analysis Service, stated that requiring waivers and getting into settlements with principal accountable events for PFAS contamination may very well be choices to restrict legal responsibility for non-responsible events going ahead.