[Senate Hearing 118-762]
[From the U.S. Government Publishing Office]
S. Hrg. 118-762
HEARING ON EXAMINING PFAS
AS HAZARDOUS SUBSTANCES
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HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
MARCH 20, 2024
__________
Printed for the use of the Committee on Environment and Public Works
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
62-511 WASHINGTON : 2026
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
THOMAS R. CARPER, Delaware, Chairman
SHELLEY MOORE CAPITO, West Virginia, Ranking Member
BENJAMIN L. CARDIN, Maryland KEVIN CRAMER, North Dakota
BERNARD SANDERS, Vermont CYNTHIA M. LUMMIS, Wyoming
SHELDON WHITEHOUSE, Rhode Island MARKWAYNE MULLIN, Oklahoma
JEFF MERKLEY, Oregon PETE RICKETTS, Nebraska
EDWARD J. MARKEY, Massachusetts JOHN BOOZMAN, Arkansas
DEBBIE STABENOW, Michigan ROGER WICKER, Mississippi
MARK KELLY, Arizona DAN SULLIVAN, Alaska
ALEX PADILLA, California LINDSEY O. GRAHAM, South Carolina
JOHN FETTERMAN, Pennsylvania
Courtney Taylor, Democratic Staff Director
Adam Tomlinson, Republican Staff Director
C O N T E N T S
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Page
MARCH 20, 2024
OPENING STATEMENTS
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware.. 1
Capito, Hon. Shelley Moore, U.S. Senator from the State of West
Virginia....................................................... 4
WITNESSES
Kenney, Hon. James, Secretary, New Mexico Department of
Environment.................................................... 7
Prepared statement........................................... 9
Bowers, Kate R., Legislative Attorney, American Law Division,
Congressional Research Service................................. 18
Prepared statement........................................... 20
Responses to additional questions from Senator Carper........ 38
Faber, Scott, Senior Vice President of Government Affairs,
Environmental Working Group.................................... 45
Prepared statement........................................... 47
Witt, Michael D., General Counsel, Passaic Valley Sewerage
Commission..................................................... 71
Prepared statement........................................... 73
Fox, Robert, Partner, Manko Gold Katcher Fox, Limited Liability
Partnership.................................................... 78
Prepared statement........................................... 80
ADDITIONAL INFORMATION
Various support letters requesting Congress to provide passive
receiver exemptions under CERCLA from:
Airports Council International-North America................. 87
Akron-Canton Airport......................................... 89
American Farm Bureau Federation.............................. 91
American Forest & Paper Association.......................... 93
American Public Works Association............................ 95
American Water............................................... 98
American Water Works Association............................. 102
Association of Metropolitan Water Agencies................... 106
Aqua......................................................... 111
Aquarion Water Company....................................... 113
Associated General Contractors of America.................... 115
Association of California Water Agencies..................... 116
Association of Washington Cities............................. 118
Avenal Landfill.............................................. 119
City of Roseville............................................ 120
C&S Waste Solutions.......................................... 122
California Water Service Group............................... 123
Calleguas Municipal Water District........................... 125
Cape Fear Public Utility Authority........................... 127
City of Dallas............................................... 130
Central New York's Water Authority........................... 132
Charlotte Douglas International Airport...................... 133
Charlottesville Albemarle Airport Authority.................. 135
Chicago Grade Landfill....................................... 137
Chiquita Canyon Landfill..................................... 138
Cincinnati/Northern Kentucky International Airport........... 139
City of Austin............................................... 141
Chicago Department of Aviation............................... 143
City of Denton Water Utilities............................... 145
City of Oklahoma City........................................ 147
City of Pendleton............................................ 149
City of Portland Utilities................................... 150
City of Riverside Utilities.................................. 152
City of Sacramento Department of Utilities................... 154
City of San Diego Public Utilities Department................ 155
City of San Luis Obispo Public Utilities..................... 157
City of Tulsa Water and Sewer................................ 159
City of Apple Valley......................................... 161
Clover Flat Resource Recovery Park and Landfill.............. 162
Cobb County-Marietta Water Authority......................... 163
Cold Canyon Landfill......................................... 164
Columbia Water Company....................................... 165
Connecticut Airport Authority................................ 167
Connecticut Water Company.................................... 169
Contra Costa Water District.................................. 171
Corix Infrastructure Inc..................................... 173
Cucamonga Valley Water District.............................. 175
CSWR Managed Utility:
Bluegrass Water Utility Operating Company................ 177
Confluence Rivers........................................ 179
Florida Utility Operating Company........................ 181
South Carolina Utility Operating Company................. 183
Texas Utility Operating Company.......................... 185
Flushing Meadows Utility Operating Company............... 187
Great River Utility Operating Company.................... 189
Hayden's Place Utility Operating Company................. 191
Limestone Water Utility Operating Company................ 193
Magnolia Water Utility Operating Company................. 195
Oak Hill Utility Operating Company....................... 197
Red Bird Utility Operating Company....................... 199
Sebastian Lake Utility Operating Company................. 201
Cactus State Utility Operating Company................... 203
St. Joseph's Glen Utility Operating Company.............. 205
Eagle Ridge Utility Operating Company.................... 207
Dallas Fort Worth International Airport...................... 209
City of Lancaster............................................ 211
Daniella Levine Cava, Mayor, Dade County, Florida............ 213
Dayton International and Dayton Wright Brothers Airport...... 215
Delta Diablo................................................. 217
Denver Water................................................. 219
Desert Water Agency.......................................... 221
Dry Creek Landfill, Inc...................................... 223
Eastern Municipal Water District............................. 224
El Dorado Disposal Company................................... 227
El Paso Water................................................ 228
Ellen Smith, Oak Ridge City Council.......................... 229
Elsinore Valley Municipal Water District..................... 230
EPCOR Water.................................................. 232
Erie Water Works............................................. 234
Fairfax County Water Authority............................... 235
Fallbrook Public Utility District............................ 237
Florida Airports Council..................................... 239
Green Mountain Water Environment Association and various
other organizations........................................ 241
Gerald R. Ford International Airport Authority............... 243
Global Water Resources, Inc.................................. 244
Golden State Water Company................................... 246
Great Lakes Water Authority.................................. 248
Greater Orlando Aviation Authority........................... 250
Green Team of San Jose....................................... 252
Hicksville Water District.................................... 253
Hidden Valley Lake Community Services District............... 255
Humboldt Bay Municipal Water District........................ 257
Huntsville International Airport............................. 259
Illinois Association of Wastewater Agencies.................. 261
International-North America Airports Council................. 263
Inland Empire Utilities Agency............................... 265
Ironhouse Sanitary District.................................. 267
John Smith Road Landfill..................................... 269
Joint Water Commission....................................... 270
Town Of Harrietstown......................................... 272
City of Wilsonville.......................................... 274
Kiawah Island................................................ 276
Lake Arrowhead Community Services District................... 278
Lehigh County Authority...................................... 280
Liberty Utilities:
Arizona.................................................. 282
Arkansas................................................. 284
California............................................... 287
New York................................................. 291
Texas.................................................... 293
Lott Clean Water Alliance.................................... 295
Loudoun Water................................................ 297
Louisville Water............................................. 299
Lucy Vinis, Mayor, City of Eugene............................ 301
Maine Water Company.......................................... 302
Maryland Association of Municipal Wastewater Agencies, Inc... 304
Mattie Parker, Mayor, City of Fort Worth..................... 306
Medford Water Commission..................................... 308
Metropolitan Airports Commission............................. 310
Metropolitan Washington Airports Authority................... 312
Midwest Biosolids Association................................ 315
Monterey One Water........................................... 317
Mt. View Sanitary District................................... 319
Municipal Authority Westmoreland County...................... 321
National Association of Regulatory Utility Commissioners..... 324
National Water Resources Association......................... 329
New York Aviation Management Association's................... 331
Newtown Artesian Water Company............................... 333
Niagra Frontier Transportation Authority..................... 335
Northeast Wyoming Regional Airport........................... 336
Novato Sanitary District..................................... 338
Oklahoma Water Utilities Trust............................... 340
Olivenhain Municipal Water District.......................... 341
Orange County Sanitation District............................ 343
Orange County Water District................................. 345
Oregon Refuse and Recycling Association...................... 349
Oro Loma Sanitary District................................... 350
Pacific Organics Solutions................................... 352
Pender County Utilities...................................... 353
Peoples Water Service Company of Florida, Inc................ 355
Port Seattle and Seattle-Tacoma International Airport........ 357
Portland International Jetport............................... 358
Potrero Hills Landfill....................................... 360
Quackenbush Resource Recovery Compost Facility............... 361
Rainbow Water District....................................... 362
Rancho California Water District............................. 364
Republic Services of North Carolina, LLC..................... 366
Perdido Bay Water, Sewer and Fire Protection District........ 368
Geneva Water Works and Sewer Board........................... 370
Green County Water & Sewer Authority......................... 372
Russellville Water & Sewer Board............................. 374
Alabama Rural Water Association.............................. 376
West Morgan East Lawrence Water and Sewer Authority.......... 378
Rural Water Association of:
Arizona.................................................. 379
California............................................... 381
Florida.................................................. 383
Iowa..................................................... 384
Illinois................................................. 386
Kansas................................................... 390
Kentucky................................................. 391
Louisiana................................................ 393
Maine.................................................... 395
Maryland................................................. 397
Michigan................................................. 399
Minnesota................................................ 407
Mississippi.............................................. 476
Missouri................................................. 401
Montana.................................................. 478
North Carolina........................................... 489
North Dakota............................................. 480
New Hampshire............................................ 482
New Mexico............................................... 487
Oklahoma................................................. 491
Ohio..................................................... 493
South Carolina........................................... 494
South Dakota............................................. 496
Utah..................................................... 500
Vermont.................................................. 502
Washington............................................... 504
Wisconsin................................................ 506
Wyoming.................................................. 508
Members of the Missouri Rural Water Association:
City of Appleton......................................... 441
City of Berger........................................... 465
City of Calhoun Water and Wastewater Facilities.......... 419
City of Clarksdale....................................... 447
City of Ellington Water and Wastewater System............ 403
City of Goodman.......................................... 466
City of Highlandville.................................... 444
City of Keytesville...................................... 432
City of Lamar............................................ 468
City of New Hampton...................................... 418
City of Northmoor........................................ 428
City of Pilot Grove...................................... 461
City of Richland......................................... 422
City of St. Charles...................................... 470
City of Wheatland........................................ 471
City of Versailles....................................... 474
City Utilities of Springfield............................ 443
Consolidated Public Water Supply District of Boone County 413
Consolidated Public Water Supply District No. 1 of
Barton, Dade, Cedar and Jasper Counties................ 450
Consolidated Public Water Supply District No. C-1 of
Jefferson County....................................... 459
Lake Forest Estates Clean Water District................. 455
Public Water Supply District of City of Gallatin......... 472
Public Water Supply District of City of Paris............ 409
Public Water Supply District of Laclede County........... 424
Public Water Supply District of Mapaville................ 434
Public Water Supply District of Marion County............ 449
Public Water Supply District of Phelps County............ 430
Public Water Supply District of Thomas Hill.............. 421
Public Water Supply District No. 1, Adair County......... 436
Public Water Supply District No. 1, Cole County.......... 457
Public Water Supply District No. 1 of DeKalb County...... 388
Public Water Supply District No. 1, Lafayette, Johnson
and Saline Counties.................................... 452
Public Water Supply District No. 1 of Pike County........ 446
Public Water Supply District No. 2, Cole County.......... 411
Public Water Supply District No. 2, Johnson County....... 416
Public Water Supply District No. 4, Cole County.......... 414
Public Water Supply District No. 8, Jefferson County..... 463
Public Water Supply District No. 9 of Boone County....... 408
Public Water Supply District No. 9, Boone County......... 458
Public Water Supply District No. 10, Cass County......... 439
Public Water Supply District No. 17, Jackson County...... 405
The Village of Theodosia................................. 438
Trenton Municipal Utilities.............................. 426
Entranosa Water Association.................................. 485
Tennessee Association of Utility Districts, City of
Murfeesboro................................................ 498
San Francisco Public Utilities Commission.................... 510
San Gabriel Valley Water Company, City of El Monte........... 512
San Jose Water............................................... 514
San Luis Obispo Waste, Recycling & Processing Facility....... 516
Sanitary District No. 5 of Marin County...................... 517
Sanitary Service Company..................................... 519
Sausalito-Marin City Sanitary District....................... 520
Shenandoah County Department of Public Utilities............. 522
Shenandoah Valley Airport.................................... 524
Sheridan County Airport...................................... 526
City and Borough of Sitka.................................... 528
Silicon Valley Clean Water................................... 530
South Carolina Water Utilities............................... 532
Southwest Water Company...................................... 534
St. Louis Lambert International Airport...................... 536
Stege Sanitary District...................................... 538
Texas Water Company.......................................... 540
The Linen, Uniform and Facility Services Association and
various other organizations................................ 549
The Sewerage and Water Board of New Orleans.................. 542
Tualatin Valley Water District............................... 544
Tucson Airport Authority..................................... 546
Upper Valley Disposal & Recycling Compost Facility........... 551
US Composting Council........................................ 552
Vallecitos Water District.................................... 553
Vallejo Flood and Wastewater District........................ 555
Virginia Municipal Drinking Water Association................ 559
Virginia Waste Industries Association........................ 561
Vista Irrigation District.................................... 563
Waste Connections of Arizona................................. 565
Water and Wastewater Equipment Manufacturers of America...... 566
WateReuse.................................................... 568
Wayne County Airport Authority............................... 570
West County Wastewater District.............................. 572
West Valley Collection & Recycling, LLC...................... 574
Western Municipal Water District............................. 575
Statement for the Record from:
International Liquid Terminals Association................... 600
ICSC......................................................... 603
ISRI......................................................... 605
Written testimony from Cynthia Mackey............................ 607
Letter of concern to Senator Capito from OxyChem................. 609
Letter of concern to Senator Carper and Senator Capito from
Waterkeeper Alliance........................................... 613
Article: Invisible Unbreakable Unnatural; PFAS Contamination of
U.S. Surface Waters............................................ 617
HEARING ON EXAMINING PFAS
AS HAZARDOUS SUBSTANCES
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WEDNESDAY, MARCH 20, 2024
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 10:02 a.m. in
room 406, Dirksen Senate Office Building, Hon. Thomas R. Carper
(chairman of the committee) presiding.
Present: Senators Carper, Capito, Cardin, Whitehouse,
Merkley, Stabenow, Padilla, Lummis, Ricketts.
OPENING STATEMENT OF HON. THOMAS R. CARPER,
U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Carper. Good morning, everybody. I am pleased to
call this hearing to order this morning.
We are gathered here today for an important discussion to
better understand PFAS as hazardous substances and the impacts
of regulating them under the Comprehensive Environmental
Response, Liability, and Cleanup Act, also known the Superfund
Law, also known as CERCLA, but first I want to thank our
distinguished panel of witnesses for joining us today to tackle
what is a really difficult issue.
Before we get started, I like to tell stories. I am going
to tell two quick stories. I used to be a Naval flight officer
for many years. I am the last Vietnam veteran serving in the
U.S. Senate. I spent a lot of time in Navy P-3 airplanes flying
out of California and then all over Southeast Asia during the
Vietnam War.
I remember two instances where we were coming in to land.
We were back from Southeast Asia. We were in Moffett Field, and
we shared Moffett Field between the Naval air station and NASA.
They had a big NASA operation. NASA had big airplanes.
Early one morning, one of our Navy P-3s had been flying
missions all night and was coming in to land at Moffett field
to debrief. There are two runways, parallel runways, and they
had the Navy P-3 land in one of the runways. Traffic control
made a mistake and directed the larger NASA airplanes to land
in the same runway. It landed right on top of the P-3, right on
top of the P-3.
We had 13-man crews. We lost about half of the crew. We
would have lost everybody, except for the firefighting crews,
who dispatched immediately, came and covered the planes in foam
and saved half of the crews.
Fast forward to 20 years later, about 20 years later. In
Delaware, we have a huge Air Force base, the Dover Air Force
Base. It is the land bridge that connects the United States to
the Ukraine, one of the things we do with our C-5 and C-17
aircraft.
One day, I was driving down on State Route 1, which
connects, as some of you know, from I-95 to all our beaches,
Rehoboth and others, getting just south of the town of Dover,
our capital city, and approaching the Dover Air Force Base, and
I could see black smoke coming up from the Air Force base.
I drove about another mile or two, and lo and behold, there
was a huge Air Force cargo aircraft that had taken off. When
they take off, they have four engines, and they have flight
engineers and pilots, they had taken off and was flying up, and
he got an engine warning light. Four engines, and he got an
engine warning light on one of the engines, and instead of the
flight engineer shutting down the engine that was giving the
warning light, he shut down another one.
They ended up with a plane that was supposed to be flying
to Europe with a full bag of fuel and a full load of cargo on
two engines. That does not work very well. They turned around
and tried to get back and land and get in the approach path and
land on the runway, and didn't make it. They didn't make it. It
went in about a mile short. Fire crews dispatched quickly to
try to save the lives on the aircraft.
Every life was saved. Every life was saved. That is the
good story. That is the good news. The bad news is, there were
a number of communities around Dover Air Force Base that now
have polluted water that they drink. Something that was
designed to save lives has made life more difficult for some of
the people who live there around that base. I just wanted to
share that with you.
I think there is a lesson to be known and taken away from
those two instances that maybe will help inform what we are
doing here today.
This is not a hearing just about firefighting foam, as you
know. As we all know, thanks to modern chemistry, Americans
have welcomed the use of PFAS in many other forms, from
nonstick pans and waterproof jackets to stain-proof furniture
fabric, and even as part of heart-valve replacements. My guess
is almost everybody here has PFAS is some form or fashion, on
our clothing, on our shoes, our shirts, or whatever. Maybe even
in our bodies with what we have had for breakfast, what we had
for dinner last night.
Since the 1940's, more than 9,000 PFAS chemicals, yes, that
is right, 9,000 PFAS chemicals have been manufactured and used
around the world. Chemists are still finding more uses for
these chemicals, from enabling lighter-weight materials for our
electric vehicle batteries to ushering in high efficiency
methods for cooling the energy hungry servers that keep us
connected to the internet.
Frankly, PFAS chemicals have made, in many instances, life
easier, but this has come at a significant cost. That is the
cruel irony of these chemicals. The very substances that can
save lives, as I mentioned earlier, and improve the quality of
our lives may also put lives at risk.
The major reason that these chemicals are so effective is
that they simply do not break down in the environment, as we
know. That is why they are known as forever chemicals. They
also accumulate, and one might ask, where do they accumulate?
Well, they accumulate in plants; they accumulate in animals;
they accumulate in our water and our soil, and most
regrettably, in our bodies, as well as in the bodies of our
children and our grandchildren.
A number of these forever chemicals have been found to be
toxic, causing liver damage, fertility problems, and even
cancer. As everyone on this committee knows, I am privileged to
represent the State of Delaware, at least for the next 9
months, 7 days, 14 hours, 33 minutes.
Yet, we have three counties in our State, and every one of
our three counties has been plagued by the presence of PFAS
chemicals in our soil, in our air, and in our water. Every one
of our colleagues in the U.S. Senate is dealing with the
lasting effects of PFAS in their States and their communities
as well.
The lasting effect of PFAS contamination is having a major
impact not only on our public health, but also on our
livelihoods. People in affected communities are worried about
falling property values and, in too many instances, farmers
with contaminated lands and livestock are being driven out of
business.
I salute our utilities, who are bearing the brunt of this
contamination and doing everything they can to remediate it
while providing safe and reliable drinking water, wastewater,
and solid waste services. As we will all recall, our colleagues
and I fought to include more than $10 billion in the Bipartisan
Infrastructure Law to support their response efforts.
Last year, the Environmental Protection Agency took a
significant step to address the impacts of PFAS by proposing to
designate two of these chemicals as hazardous substances under
the Superfund Law. We anticipate that this rule will be
finalized later this calendar year.
The Superfund Law provides the government, as you know,
with the authority to hold polluters responsible for
environmental contamination caused by dangerous substances.
With this proposed designation, the EPA is doing good work to
increase transparency around the prevalence of these chemicals
while also protecting the environment and public health.
Though this designation is an important step forward, we
have also heard concerns about the potential unintended impacts
this designation could have on entities like municipalities and
water treatment plants. These facilities and entities do not
use these chemicals at all but could be held responsible for
downstream contamination simply because the contamination
traveled through their facility. To date, the EPA has never
enforced an action against a passive recipient of contamination
under the Superfund Law.
However, these facilities and entities are concerned that
this designation could potentially saddle them with unjustified
lawsuits until the EPA identifies the real responsible parties.
As you know, working through Superfund liability could take
years under the current legislative structure of the Superfund
Law.
The goal of today's hearing is to better understand these
concerns and to continue our efforts to confront this
contamination where it exists. Cities and States around America
are scrambling to protect citizens and restore contaminated
lands and waters from PFAS, but with a hazardous substance
designation on the horizon, these entities and their utilities
are understandably worried about legal costs for contamination
that someone else may have caused.
Ultimately, I believe that the Federal Government, States,
and local communities should all come together to address these
toxic pollutants. Our cities and their citizens are desperate
for a solution, but we must keep in mind common sense as we
work to identify who is responsible for cleaning up these
chemicals.
The bottom line is this: while PFAS chemicals can serve
useful purposes and do serve useful purposes in our lives, the
other side of the coin is that PFAS chemicals are pervasive
threats to our families' health and could cost our economy not
just millions, but potentially billions of dollars in cleanup
expenses every year. According to the Minnesota Pollution
Control Agency, it costs $50 to $1,000 to buy a pound of PFAS
to make consumer products, but it costs $3 million to $18
million per pound to remove it from wastewater. Think about
that.
We need strategic national policies and investments to help
us do several things. First, determine the spread of PFAS
contamination; second, identify the health threats that these
chemicals can pose; and third, explore the best methods to rid
our water and our lands of them, and finally, collectively find
a path forward to make the actual polluters pay while
protecting innocent parties.
All of us look forward to hearing from our witnesses today.
We sincerely look forward to hearing from you today about how
we can work together to address PFAS contamination. Senator
Capito and I have been privileged to lead this committee
through some really tough issues over the last several years,
and this is maybe one of the toughest, maybe the toughest, but
I get to work here with her for a while longer. This is
something that I really want to have taken on and dealt with in
a responsible way on my watch.
Senator Capito's home State of West Virginia, my native
State, has endured far more than its fair share of PFAS
contamination. I am delighted to be working on this issue with
you. I look forward to making progress. Thank you.
OPENING STATEMENT OF HON. SHELLEY MOORE CAPITO,
U.S. SENATOR FROM THE STATE OF WEST VIRGINIA
Senator Capito. Thank you, Mr. Chairman, and I thank the
witnesses for being here, and the full room is nice to see.
Addressing the challenges of a class of substances,
collectively referred to as PFAS, is one of my highest
environmental policy priorities. Due to their unique chemistry,
PFAS has been used, as the Chairman said, in almost nearly
every industrial application since the 1940's.
Given that PFAS is everywhere, we must carefully consider
the best and most efficient way to address past contamination
and limit future exposure. This means prioritizing actions that
address PFAS, ones of greatest known health risks, and
examining common routes of exposure for those chemicals.
I firmly believe that the most effective solutions for
tackling PFAS require bipartisan collaboration, as the Chairman
mentioned. Recognizing the urgency of the situation, I want to
continue to work with him to develop tailored legislation. We
have been trying; we have been trying.
Last year, the EPA announced it intends to designate two
legacy PFAS as hazardous substances under CERCLA. Today's
hearing offers us an opportunity to evaluate the potential
consequences of that proposal. CERCLA was promulgated in 1980
after the enactment of the Clean Air Act, Clean Water Act, Safe
Drinking Water Act, and other foundational Federal
environmental statutes. CERCLA imposes strict, joint, and
several, and retroactive liability for releases of chemicals
that are designated as hazardous substances.
CERCLA enshrines the core principle of the polluter pays.
If you cause a release, you are responsible for the cleanup.
Congress established CERCLA as the last stop in deeming a
substance as hazardous. Generally, a substance is subject to
regulation under CERCLA only after it has been first regulated
by other statutes.
This leads us to the specific topic of our hearing today.
Despite having years to evaluate and potentially regulate PFAS,
the EPA is considering, as I mentioned, designating two PFAS
under CERCLA before comprehensively addressing them under any
other Federal environmental statute. By the EPA's own
admissions, the CERCLA-first approach does not provide the EPA
with the flexibility to exempt innocent parties from liability
for cleanup costs. If an entity meets the definition of
potentially responsible party, that entity is liable for all
clean-up costs, regardless of intent or exercise of due care.
While I appreciate that EPA claims that it plans to
exercise enforcement discretion, it will not provide a
liability shield to those who had no role or responsibility for
PFAS contamination. Absent congressional intervention, the
burden of cleaning up sites tainted with PFAS will fall on the
shoulders of entities like drinking water and clean water
systems and waste management utilities. These entities are
known as passive receivers. They did not manufacture or
generate PFAS and were unknowingly or required by law to catch
or to receive these contaminants.
Given that the EPA plans to finalize its proposal, Congress
must step in, I think, to address the overly broad sweep of
CERCLA liability, as Congress has done in the past, 11 times
before.
If the agency regulates PFAS under CERCLA and then the EPA
finalizes the drinking water standards, which I have been after
them to do for several years, as it has proposed to do, the
CERCLE listing will have put water utilities in an untenable
position.
Communities would be required to remove six substances, two
of which would be hazardous substances, through water treatment
processes, therefore concentrating the PFAS in filters. Water
systems are going to be stuck holding these filters because
landfills would be unwilling to accept them due to liability
concerns.
Wastewater and storm water utilities, although not
responsible for generating these flows, could face similar
liabilities, receiving PFAS chemicals through intakes or storm
water runoff. These passive receivers would bear the brunt of
these liabilities, facing frivolous lawsuits for just providing
essential services.
No EPA enforcement discretion policy can prevent those
lawsuits by activist third parties. Without congressional
action, a wave of lawsuits could potentially raise taxes and
utility rates on millions of Americans, all while enriching the
trial lawyers. This result flips the polluter pays principle on
its head, turning it into a consumer pays model.
This year presents us with a unique opportunity to confront
the PFAS challenge. To effectively address these issues, which
we should, we have crafted a draft piece of legislation that
focuses on a comprehensive study to tackle PFAS pollution.
I have made it clear that my support of any PFAS
legislation is contingent upon addressing this liability issue
under CERCLA and providing liability protections for those
passive receivers. This is a non-negotiable condition for me.
Entities that had no role in creating or controlling these
contaminants should not be penalized.
I am confident that carefully crafted bipartisan
legislation can strike the right balance between public health
and in the environment from PFAS contamination without imposing
additional financial strain on American households already
grappling with the challenge of daily living.
I look forward to our collective efforts in finding a
comprehensive and fair solution to this pressing and, I would
say, very complicated issue. I yield back.
Senator Carper. Thanks very much for those words and for
the partnership we have on this issue and on so many other
issues.
As Senator Capito knows, my family is originally from a
coal mining town in West Virginia called Beckley in Raleigh
County. My grandfather was one of the co-founders of Raleigh
County.
My dad used to say to my sister and me, when we were kids
growing up, he used to say the hardest things to do are
sometimes the things most worth doing. He said, the hardest
things to do are sometimes the things that are most worth
doing. He also used to say, quitters never win, and winners
never quit.
Those words are, frankly, on my mind today, along with the
words of a friend of ours who is actually from Wyoming, who was
a witness on another committee that I serve on, who once, at a
hearing, he said bipartisan solutions are lasting solutions.
Think about that: bipartisan solutions are lasting solutions.
We work on a lot of tough issues on this committee, but we are
usually able to get to the right place by working across the
aisle, and we are going to again do that as well.
I want to say a special thanks to our staffs, both majority
and minority, and personal staffs for the work that you have
done already and are prepared to do to try to get us to where
we need to go.
With that, let us turn to our panel of witnesses. We are
grateful to all of you for the time that you have taken to join
us this morning, prepared for this, to discuss this important
topic.
First, we are going to hear from Secretary James Kenney. He
serves as the Cabinet Secretary for New Mexico Environment
Department. Prior to his current appointment, Secretary Kenney
spent more than 20 years across two stints at the USEPA and
also as an environmental engineer, leading both criminal and
civil investigations related to environmental statutes.
Thanks for joining us, Secretary Kenney.
Next, we have Kate Bowers. Kate serves as the Legislative
Attorney in the American Law Division of the congressional
Research Service. Her work focuses primarily on environmental
law, including the Clean Air Act, the Clean Water Act,
hazardous substance response and regulation, and other
pollution control laws and environmental enforcement.
Third, we are going to hear from Scott Faber, who is the
Senior Vice President for Government Affairs at the
Environmental Working Group. Scott has been a leading voice for
the environmental community on addressing PFAS contamination
while also serving as an adjunct professor at Georgetown
University Law Center.
Next, we are going to hear from Michael Witt, General
Counsel for the Passaic Valley Sewerage Commission. Mr. Witt is
testifying on behalf of the Water Coalition Against PFAS.
Welcome.
Finally, we are going to hear from Rob Fox, who serves as a
partner at Manko Gold Katcher Fox, LLP. Mr. Fox is testifying
on behalf of the National Waste and Recycling Association and
Solid Waste Association of North America.
We thank you all for appearing today and taking your time.
Thanks for your preparation and your willingness to answer some
of our questions as we try to find the right path forward on a
tough issue.
With that in mind, Secretary Kenney, go ahead.
STATEMENT OF HON. JAMES KENNEY, SECRETARY,
NEW MEXICO DEPARTMENT OF ENVIRONMENT
Mr. Kenney. Good morning, Mr. Chairman, Ranking Member
Capito, and members of the committee, and fellow panelists. My
name is James Kenney. I am the Cabinet Secretary of the New
Mexico Environment Department, and I appreciate the opportunity
to be here today to talk to you about PFAS.
As you indicated, my experience is 20-plus years working
across Federal and State government agencies looking at
chemical plants as well as defense facilities, all of which are
right at the center of PFAS discussions.
As you indicated, Mr. Chairman, the group of chemicals we
are talking about are moving through our economy in both
consumer goods and industrial goods. They are moving through
our economy and then, ultimately, into our environment. They do
not decompose, as we all know, hence the term forever
chemicals. They bioaccumulate in our bodies. They bioaccumulate
in our wildlife, and they move through our land and water at a
significant cost to remediate.
We know that these chemicals can have serious health
effects, which is why we are here today, and the New Mexico
Environment Department is leading efforts to ensure that they
do not continue to move into our environment.
When I was before this committee in 2001, I advocated for
the use of RCRA to address PFAS. The Resource Conservation and
Recovery Act, our Nation's hazardous waste law, is something
that States can take action on today to address PFAS
contamination. This is because the Congress had the insight to
give USEPA and States broad authority under RCRA.
In fact, Governor Michelle Lujan Grisham petitioned EPA to
list even more chemicals as hazardous under RCRA, and the USEPA
has taken up that petition. There are two rulemakings active
right now that EPA hopes to finalize by the end of the year to
again affirm that States and EPA can regulate PFAS under RCRA.
I continue to advocate here today, stating that PFAS is
best addressed under RCRA as a starting point, either through
direct congressional action or continued USEPA creation of and
finalizing rules. Addressing PFAS under RCRA brings a more
common sense foundation, in my opinion, prior to implementing
the CERCLA requirements.
Here is why: RCRA is largely implemented by the States. In
contrast, CERCLA is primarily implemented by multiple Federal
agencies with less involvement from EPA and States. Under
CERCLA, implementation of those rules allows the Department of
Defense, as one entity, to police itself.
That has not worked. It has produced inconsistent results
in New Mexico and across the Country. There is no other
industry that is allowed to police itself under CERCLA like the
Department of Defense does.
On my fifth day on the job as Cabinet Secretary 5 years
ago, New Mexico was slapped with a lawsuit to undermine RCRA
authority for the cleanup of PFAS by the United States. We are
now in the fifth year of that lawsuit. What we have to show for
it is $8 million in defensive litigation, about $3.7 billion of
our agricultural industry threatened by migrating plumes of
PFAS.
This would impact, again, New Mexico's ag industry, but
also North America's largest cheddar cheese plant. In addition
to that, New Mexico has paid $850,000 to help a dairy farmer
dispose of his euthanized cows for PFAS poisoning as RCRA
hazardous wastes.
We plan to continue to work to test the service men and
women, as well as residents who live around one of our bases
for PFAS contamination. All this under the backdrop of not
getting anywhere with the Department of Defense in terms of
remediating PFAS off-base.
Given my experience with RCRA and CERCLA, I offer two
recommendations for the committee. One, Congress should take
immediate action to list PFAS as hazardous waste under RCRA to
achieve better outcomes for communities sooner, and two,
Congress should modify CERCLA and the Defense Environmental
Restoration Program so that USEPA is the sole responsible
implementing agency, not the Department of Defense.
In doing so, we will create a strong program that is
focused on both the polluter and giving States the ability to
address the passive receivers with discretion.
Thank you.
[The prepared statement of Mr. Kenney follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Carper. I will just say to our witnesses, in
baseball, they have a term called telegraphing a pitch. You can
tell by the way the pitcher holds the ball and releases the
ball, whether he is throwing a curveball, split finger,
whatever it was.
I am going to telegraph a pitch. I am going to come back to
his two recommendations, and I am going to ask each of you just
to comment on the feasibility of those, Okay? We will do that
when we do the Q and A.
Next in the on-deck circle, coming into the batter's box,
is Kate Bowers. Kate, welcome. Please proceed.
STATEMENT OF KATE R. BOWERS, LEGISLATIVE ATTORNEY, AMERICAN LAW
DIVISION, CONGRESSIONAL RESEARCH SERVICE
Ms. Bowers. Thank you, and good morning, Chairman Carper,
Ranking Member Capito, and members of the committee. My name is
Kate Bowers, and I am a legislative attorney in the American
Law Division at the congressional Research Service. Thank you
for inviting me to testify today on behalf of CRS.
In my brief remarks, I will be addressing the mechanisms
established in the Comprehensive Environmental Response,
Compensation, and Liability Act, also called CERCLA or the
Superfund Law, for holding parties responsible for the costs to
clean up contaminated sites. My testimony will also address
considerations that may be relevant to liability if EPA
finalizes its proposal to designate one or more PFAS as
hazardous substances under CERCLA.
CERCLA authorizes EPA to clean up contaminated sites and to
compel entities that bear responsibility for contamination at a
site to perform or pay for cleanup activities. Private parties
that incur cleanup costs may seek to recoup those costs from
other parties or from the Superfund Trust Fund. This framework
is intended to ensure that there will be parties who can bear
the cost of cleaning up contamination and that all responsible
parties who are able can be required to share those costs.
Parties may be liable under CERCLA for response costs,
injury to natural resources, natural resource damages
assessments, and Federal public health studies. For a party to
be liable for cleanup costs under CERCLA, several requirements
must be met. There must be a release or threatened release of a
hazardous substance into the environment. There must also be a
response action, or cleanup, and response costs at the site.
Only certain categories of parties with a connection to the
contamination may be held liable. Those parties are often
called potentially responsible parties, or PRPs, and includes
current owners or operators of a site, past owners or
operators, arrangers, and transporters.
CERCLA allows any person, including EPA, States, local
governments, tribes, and private parties to sue a potentially
responsible party to recover response costs that they have
incurred. It also allows a party that has been required to pay
response costs to assert a contribution claim to compel other
PRPs to bear an equitable share of those costs.
Parties that have resolved their CERCLA liability to the
United States or a State cannot then be held liable for
contribution claims by other PRPs regarding matters addressed
in that settlement.
Liability under CERCLA is only associated with releases or
threatened releases of hazardous substances. A substance may be
considered hazardous for purposes of CERCLA based on either
designation under another statute to which CERCLA refers, or a
direct designation pursuant to CERCLA itself. The proposed PFAS
designations, if finalized, would represent the first use of
EPA's direct designation authority under CERCLA.
Designation of one or more PFAS as a hazardous substance
under CERCLA would subject releases of those PFAS to the
statute's reporting requirements and liability framework.
Designation would not trigger a public or private cleanup,
alter the CERCLA response process or applicable cleanup
standards, or determine the liability of any party.
If the preconditions to liability are met and no defenses
or exemptions apply, entities that are associated with
facilities or sites where PFAS was produced, used, or disposed
of could be held liable in the event of a PFAS hazardous
substances designation.
CERCLA liability extends to the Federal Government, this
could also include Federal departments or agencies that
released PFAS. The determination of an individual party's
liability is a site-specific, fact-intensive inquiry, and so,
as a result, it is not possible to determine a party's or a
category of party's liability in the abstract.
CERCLA also provides several exemptions and defenses to
liability for categories of parties that meet certain criteria.
For example, the statute provides an exemption to CERCLA
liability for response costs or damages resulting from a
federally permitted release. If a release or a discharge is in
accordance with a permit issued under another specified Federal
statute, like the Clean Water Act, that discharge then might
not be a basis for CERCLA liability.
EPA has also stated that it does not intend to pursue
enforcement against certain entities, such as farmers, water
utilities, airports, or local fire departments. Enforcement
discretion does not alter the scope of liability as defined in
the statute, nor does it bar States, local governments, tribes,
or private parties from taking action against a PRP.
If a party has not resolved its liability by settling with
EPA or a State, it will not receive protection from future
contribution claims, but by limiting the number of response
actions EPA undertakes, the agency's policy could limit the
circumstances giving rise to the response costs that are a
necessary condition for CERCLA liability.
Thank you, and I look forward to your questions.
[The prepared statement of Ms. Bowers follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Carper. Thanks very much, and our thanks to
everybody at the congressional Research Service for the service
that you provide, not just for the Senate and the House, but
for our Country. Thank you very, very much.
Next, we are going to hear from Scott Faber. Scott, please
proceed. Thank you. Welcome.
STATEMENT OF SCOTT FABER, SENIOR VICE PRESIDENT OF GOVERNMENT
AFFAIRS, ENVIRONMENTAL WORKING GROUP
Mr. Faber. Thank you so much for inviting me.
This morning, I am joined by Nora Strande. Nora's sister,
Amara, recently passed away from a form of liver cancer she
believed was caused by PFAS. Amara and Nora grew up in the
heart of the Nation's largest PFAS plume and, like all of us,
Amara and Nora had no idea they were drinking water
contaminated with PFAS.
Senator Carper. Scott, where is that plume? What State,
where is it?
Mr. Faber. That is east of Saint Paul in Minnesota,
Senator.
Senator Carper. Thank you.
Mr. Faber. Like all of us, Amara and Nora had no idea they
were drinking water contaminated with PFAS. All of us, that is,
except for the polluters. We are here today because the
manufacturers of these chemicals hid their harms from their
regulators, from their customers, from their neighbors, their
workers, and from you, from Congress. That is why PFOA and PFOS
were not added to the list of more than 800 hazardous
substances decades ago, because the companies that make these
chemicals concealed their harms from you.
None of us, least of all Amara and Nora, consented to be
polluted with PFAS, but all of us have PFAS in our blood. Some
of us, firefighters, people who live or work for PFAS makers
and users, people who live in defense communities, people
living downstream or downwind of these companies, have far more
PFAS in our blood. Yet, the same companies, many of the same
companies, continue to release thousands of pounds of PFAS into
the air and water every year.
Instead of taking action to reduce those releases, industry
leaders are now urging you to create more loopholes. Our view
is very simple: legal loopholes are the problem, not the
solution. The good news, thanks to actions taken by Congress in
the past, is that responsible stewardship of hazardous
substances is nothing new, especially for water utilities and
waste managers.
Right now, 66 hazardous substances, 66 are found in our
drinking water systems, including equally notorious pollutants,
like benzene, carbon tetrachloride, PCBs and TCE. Right now,
nearly 250 hazardous substances are found in our landfills,
including arsenic and lead and chromium.
If water utilities and waste managers are already
addressing these other hazardous substances, what is different
about PFOA and PFOS? When it comes to comes to hazardous
substances, the law allows EPA to use their discretion to focus
on the polluters and to assign responsibility on those who
should bear responsibility. That is what EPA has always done,
and that is what EPA has said it will do with regards to PFOA
and PFOS.
In a recent letter to House leaders, EPA wrote ``The agency
will focus its enforcement efforts on manufacturers and does
not intend to pursue entities such as farmers, water utilities,
airports, or local fire departments, and will provide
protections against third party cost recovery claims.'' This
letter is consistent with EPA's long history of using the
discretion provided by Congress to assign liability where it
belongs, with the polluters.
The Superfund Law is not only designed to recover and
fairly apportion the costs of cleanup. The law is also designed
to ensure that public and private companies are good stewards
of these hazardous substances. Creating loopholes in the
Superfund law will remove a powerful incentive for water
utilities and waste managers to be good stewards of these toxic
forever chemicals.
Let's address the big challenges before us. Let's not make
them worse. Congress has never created a Superfund exemption
for a specific chemical, not even for notorious pollutants like
PCBs and asbestos.
I know we all wish Amara was here today to deliver this
testimony, not me. Just before Amara passed, she helped enact
the toughest PFAS law in the Nation, which was later named
Amara's Law. Imagine the courage it took to sit where I am
sitting now and fight for the rest of us.
Let's honor Amara by closing the loopholes that are making
us sick, not creating new loopholes.
Thank you.
[The prepared statement of Mr. Faber follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Carper. How old was Amara when she passed, do you
know?
Mr. Faber. Amara passed 2 days before her 21st birthday,
Mr. Chairman.
Senator Carper. This is her sister?
Mr. Faber. This is her sister.
Senator Carper. Thank you for joining us today. We are
sorry for your loss.
Thank you, Mr. Faber.
Mr. Witt, you are next, Michael Witt. Go ahead, please.
Thank you for joining us.
STATEMENT OF MICHAEL D. WITT, GENERAL COUNSEL,
PASSAIC VALLEY SEWERAGE COMMISSION
Mr. Witt. Good morning, and thank you, Chairman Carper and
Ranking Member Capito and all members of the committee for the
invitation to testify about the need to protect water systems
from PFAS liability under CERCLA. I am honored to be here.
My name is Michael Witt, and I am general counsel of the
Passaic Valley Sewerage Commission in Newark, New Jersey or
PVSC. Formed in 1897, PVSC is one of the oldest environmental
agencies in the United States. We have been providing sewer
service for 100 years this year, actually. We operate the fifth
largest wastewater plant in the Nation, and every day, we
provide service to about 1.5 million people spread across 48
communities in northeastern New Jersey.
I am testifying today on behalf of the Water Coalition
Against PFAS. The Coalition includes organizations whose
membership represents all facets of clean and safe water
delivery: the National Association of Clean Water Agencies, the
Association of Metropolitan Water Agencies, the American Water
Works Association, the National Association of Water Companies,
the National Rural Water Association, and the Water Environment
Federation. Together, the Coalition advocates for tens of
thousands of wastewater and drinking water and storm water
utilities who keep our Country's vital water supply safe and
operating each and every day.
Water sector utilities were created to protect public
health and the environment. Ironically, it is the very act of
doing that, providing clean and safe drinking water and
treating waste water, that exposes our utilities to liability
under CERCLA. Utilities do not manufacture PFAS. We do not
profit from PFAS. Industry did that, for decades.
In contrast, utilities passively receive PFAS via drinking
water supplies and through influent. That fact and that fact
alone exposes each and every utility in the United States to
potential liability under CERCLA. It exposes our ratepayers to
having to pay for the problem of funding PFAS cleanups. This is
simply wrong, and Congress must act to fix it.
Our coalition is asking Congress to provide water systems
with liability protections under CERCLA for PFAS to help ensure
that the polluters, not the public, pay for cleanups. To be
clear, as EPA and State agencies develop drinking water,
wastewater, and storm water standards, utilities will be
implementing these standards through costly treatment upgrades.
We will be working hard to do this and still keep our rates
affordable because we have to charge for it. CERCLA liability
would come on top of that and despite those investments.
Some have expressed the opinion that if utilities just
comply with their Federal permits, they will not have CERCLA
liability. That is not the case. The existing CERCLA exemptions
tied to Federal permits generally would require that PFAS be
directly addressed in permits before it could provide any sort
of liability shield. EPA and the States are still figuring out
how to address PFAS and permits, so we do not have that yet.
CERCLA is also retroactive, meaning that in the future,
when we can rely on those permit shields, CERCLA would still be
able to look back and still keep up on the hook for remediating
decades worth of PFAS that the chemicals companies have pumped
into our water and our air and on our land.
I am also aware that EPA has proposed to exercise
enforcement discretion and that they do not intend to target
water systems. We welcome that policy, but it is not enough. It
does not carry the force of law. It could change tomorrow. Its
impact is limited to clean ups that are led by EPA, not by
private parties. CERCLA provides even the most culpable parties
with multiple avenues to drag innocent parties into extremely
costly and complex litigation, and there is little EPA can do
to stop it.
This is not a hypothetical statement. We know that this
happens, because it has happened to my own utility. We have
been involved in the largest Superfund case to date under that
law for the last 28 years.
From 1951 to 1969, the Diamond Alkali Company manufactured
Agent Orange on the banks of the Passaic River. A byproduct of
Agent Orange is tetrachlorodibenzo-p-dioxin, or TCDD, which has
been labeled by scientists as one of the most toxic synthetic
chemicals that humans know how to make. Like PFAS, TCDD is
persistent in the environment, and like PFAS, PVSC does not
manufacture, use, or profit from TCDD.
During its time manufacturing Agent Orange, Diamond Alkali
intentionally dumped TCDD into the Passaic River. The damage
that the company did will run into the billions of dollars to
remediate.
It is difficult to imagine a more culpable party under
CERCLA, yet Diamond Alkali's successors in interest have been
able to drag through decades of litigation hundreds of parties
into it, including PVSC and 40 other public entities, into this
fight. We know that enforcement discretion by itself simply
does not work.
We have also heard it said that utilities need the threat
of CERCLA to ensure that they will do the right thing. This is
insulting, it is unmoored from reality, and it does not take
into account that we are already under permits. Everything we
do, every time we operate, is under the Clean Water Act. We
already have the Safe Drinking Water Act to provide those
standards for us.
That is where the focus should be, on enforcement and on
helping these communities to address PFAS, is through
modification of our treatment systems. Let us put our money
where it counts, not into lawsuits. Thank you all.
[The prepared statement of Mr. Witt follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Carper. Thank you, Mr. Witt.
Mr. Fox, please, and then we will go to questions. Thanks.
STATEMENT OF ROBERT FOX, PARTNER, MANKO GOLD KATCHER FOX,
LIMITED LIABILITY PARTNERSHIP
Mr. Fox. Chairman Carper, Ranking Member Capito, and
members of the committee, thank you for the opportunity to
appear before you today.
My name is Robert Fox. After graduating from Harvard Law
School, I practiced environmental law for 38 years and have
taught Superfund as an adjunct professor for 27 years at Penn
Carey Law School. My clients on Superfund matters include all
industry sectors and municipalities, such as the city of New
York.
My testimony today is on behalf of the Solid Waste
Association of North America and the National Waste and
Recycling Association, two organizations representing
municipalities, the private sector, and essential public
service providers throughout all 50 States and the District of
Columbia.
EPA has proposed listing PFOA and PFOS as hazardous
substances under CERCLA. PFAS compounds are ubiquitous in
consumer products, including in nonstick cookware, dental
floss, nail polish, and carpets. Once discarded, these
materials are ultimately disposed of in municipal solid waste
landfills.
As a result, landfills are and were passive receivers of
these waste streams containing PFAS. They never manufactured or
used PFAS in their operations, but only receive them due to the
presence in waste created by virtually every person in this
Country. There is no practical way for landfills to identify or
segregate household waste containing PFAS from general waste.
Three facts are important to keep in mind. First, listing
PFAS compounds directly as CERCLA hazardous substances is
unprecedented. CERCLA defines hazardous substances by including
any substance already regulated pursuant to Federal
environmental statutes, such as RCRA and the Clean Water Act.
Here, EPA is proposing to list PFAS compounds as hazardous
substances before finalizing regulatory standards under those
authorities.
Second, there are no current standards for PFAS compounds
in permits for landfill leachate, the liquid found in landfills
that is either managed via a permit to a publicly owned
treatment works, or POTW, or discharged directly pursuant to a
NPDES permit. As a result, CERCLA designation would impose
liability, both retroactively and prospectively, on landfills
that historically and currently do not have any PFAS
requirements in their permits.
Third, landfills, POTWs, and water treatment plants are
interdependent public services. POTWs managing leachate from
landfills and discharges from other sources generate biosolids,
while POTWs routinely and increasingly handle those biosolids
by disposal in landfills.
As a practical matter, CERCLA designation of these PFAS
compounds in the absence of congressional relief would compel
landfills to restrict inbound waste with elevated levels of
PFAS compounds, including spent water filtration systems,
biosolids, and contaminated soils from CERCLA sites, including
DOD sites. As a result, EPA's goal of promptly remediating PFAS
contamination at other sites will be delayed and frustrated.
More basically, CERCLA liability will completely disrupt
the well-established municipal waste infrastructure in this
Country. Certain wastes will have no place to go, and increased
disposal costs will turn CERCLA's objectives from a polluter
pays policy into a community pays reality.
The solid waste sector is not looking for relief where the
groundwater at landfills has been impacted by these PFAS
compounds due to landfill operations. Rather, we are seeking a
narrowly tailored exemption from CERCLA liability arising from
permitted leachate discharges. The exemption would apply where
the release of PFAS compounds from a landfill are or were
contained in an otherwise permitted discharge.
Once landfills become subject to PFAS permit discharge
requirements, they would be exempt only to the extent that they
meet discharge requirements and qualify for the existing
federally permitted release exemption from CERCLA liability. In
anticipation of these discharge limits, landfills are
proactively piloting a range of cutting-edge treatment
technologies for PFAS in leachate.
I want to address two arguments that have been asserted
against this proposal. First, this type of exemption from
CERCLA is nothing new. Congress has exempted parties who were
inequitably held liable under CERCLA by creating 11 CERCLA
exemptions over 40 years for parties as diverse as lenders,
fiduciaries, brownfields developers, recyclers, and most
apropos here, for residential and small business generators of
household waste.
Second, EPA has stated its policy to exercise enforcement
discretion under CERCLA for certain passive receivers renders
unnecessary the need for a statutory exemption. EPA enforcement
discretion is insufficient.
As a matter of law, if EPA chooses not to take any action,
the passive receiver has no protection from a suit brought by
any other potentially responsibly party. Even if EPA settles
with the passive receiver and provides those parties with
statutory contribution protection, prevailing case law holds
that settlement will not protect those settling parties from
cost recovery actions brought by parties who have not been sued
or settled with EPA.
For all of these reasons, SWANA and NWRA respectfully
support the limited statutory exemption discussed herein for
leachate discharges containing PFAS from a passive receiver
landfill.
[The prepared statement of Mr. Fox follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Carper. Mr. Fox, thanks. You have given us a lot to
think about. Thank you so much.
I mentioned when I said earlier that today, I was going to
telegraph my pitch and go back to Mr. Kenney and ask him to
repeat what he said at the beginning of his testimony. Rather
than do that, I am going to do that for the record. We will do
that for the record. We will reach out to everybody on the
panel and restate what he has already said and ask each of you
your opinions.
One of the things I oftentimes do at the end, my colleagues
know, at the end of a hearing, especially one as difficult to
deal with as this one, I will ask the witnesses at the end of
the hearing, where do you think we have, amongst the witnesses,
where is there agreement? Maybe not total agreement, but some
consensus. One of the things we have to do at the end of the
day is to try to find consensus, and this is an opportunity for
you to at least start that process.
We will start, Mr. Kenney, with you. Mr. Secretary, I want
to take a minute, just take a minute. Where do you think there
is some consensus on this panel?
Mr. Kenney. Mr. Chairman, I think there is consensus on the
panel around that the Clean Air Act, Clean Water Act, and RCRA
are foundational statutes that should be built upon, and CERCLA
layering on top of that provides an added value of protection.
That is a time-dependent approach. I think that is something
that I suspect the panel, I know communities in New Mexico
would be better protected with that approach.
Senator Carper. Thank you for that. Ms. Bowers?
Ms. Bowers. Thank you, Senator, thank you for the question.
I think we can say that, in the context of PFAS
contamination, we have identified the parties that could be
held liable as entities that have been involved in releases of
PFAS, if no other preconditions to liability are met, and no
exemptions apply.
What the committee may wish to consider is whether
additional protections in the form of a liability exemption
would be necessary to go beyond the enforcement discretion that
the EPA has indicated that it intends to apply, and whether it
wishes to go beyond exemptions such as the federally permitted
release exemption from liability, which could potentially apply
to some entities that could be held liable in the event of a
cleanup of PFAS contamination.
Senator Carper. Good. Thank you for that.
Mr. Faber?
Mr. Faber. Thank you, Senator, for the question.
I was honored to be here 5 years ago when we first started
working together to address PFAS contamination, and thanks to
your leadership, we now know a lot more about who is releasing
PFAS and just how much is in our drinking water.
Unfortunately, we have learned that millions of people are
drinking too much PFAS in their tap water. I think all of us
agree that we should quickly finalize the drinking water
standards. Senator Capito, I was so glad to hear you say that
this morning. I am hopeful we will see something soon.
I think we would all also agree that we should not be
making this problem bigger, that we should not be allowing
manufacturers and users of these chemicals to continue to
discharge these chemicals with no limits at all.
Imagine if I were sitting here today and testifying that
people could release asbestos or PCBs or dioxins into the
atmosphere or into the water with no limits at all. You would
all think that was ridiculous, but that is exactly the case
with regards to PFAS. There are likely more than 30,000
companies that are discharging PFAS into the air and water
right now. If we were to take steps to limit those discharges,
that would be less PFAS entering the drinking water systems and
landfills that the other witnesses are here addressing. It
feels like that is an area where there is an opportunity for
real progress.
Senator Carper. Good, good. Thank you. Yes, thank you for
that.
Mr. Witt?
Mr. Witt. Thank you, Chairman. I have to say, I am actually
really quite encouraged by what I have heard so far this
morning. I do not think that there is a lot of disagreement on
this panel. We all acknowledge and recognize the problem that
is there.
I think the only issues between this panel, where there may
be some difference of opinion, is how to get there. We all
recognize the importance, and certainly, from the water
sector's point of view, of the water sector's role going
forward under PFAS regulatory schemes on being part of the
solution to this problem.
We just need to make sure that we are not, as Mr. Faber
just said, we are not a manufacturer or user, and that is where
the liability needs to be put, as Mr. Faber just said. The
difference of opinion here may be about whether or not there is
an exemption for this sector that is needed under CERCLA, and
again, I think that it definitely has to happen.
Senator Carper. I am going to ask you to hold it there, if
you will, Okay? Finish your sentence, but then we need to go to
the next witness.
Mr. Witt. Yes, I was just going to say, hope is not a good
plan.
Senator Carper. Henry Ford used to say, if you think you
can, or you think you can not, you are right. We need a sense
of optimism. This is a tough issue. Thank you for your
optimism.
Mr. Fox?
Mr. Fox. Sure. I think there are probably two things that I
heard that there was some consensus on. One is that listing
PFOS and PFOA before it is regulated or designated under other
statutes is out of sequence. In 44 years of CERCLA's history,
it has never been done before, and there is a good reason for
that, because you need the standards and the regulation, and I
didn't hear any dispute on that issue in terms of the sequence.
The second was that the guiding principle under Superfund
is polluter pays, and we do not want to create a situation
where the people who are paying are ratepayers and taxpayers.
We have to do this carefully and deliberately so we do not have
that law of unintended consequences.
Senator Carper. Thanks.
Now, we are going to hear from our Ranking Member of the
committee, Senator Capito. I could not have a better partner,
and I need a great partner on an issue like this.
Senator Capito?
Senator Capito. Thank you, Mr. Chairman. I want to thank
all of you. Mr. Faber mentioned 5 years ago. We have learned a
lot; I have learned a lot, and this impacts all of our States.
We had an issue with our DOD in West Virginia, so I empathize
with that.
Anyway, I would like to note that we received letters from
250 entities requesting that Congress provide some passive
receiver exemptions under CERCLA. They are like drinking water,
waste water, ag groups, State and local governments, airports,
and others. I would ask unanimous consent to submit those
letters for the record.
Senator Carper. Without objection.
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Senator Capito. Good, thank you.
Let us talk about, I think one of the cruxes of this
enforcement discretion point, the EPA says enforcement
discretion to protect water and wastewater, and that their
intent is to focus on the polluter pays and the producers and
the users.
Mr. Witt, you had direct experience with this through the
Passaic Valley Sewerage Commission during the dioxin Superfund
litigation. Could you speak about your experience, and you did
speak a little bit about this in your opening statement, how
successful or unsuccessful the EPA's policy in protecting your
utility from financial and legal challenges related to the
cleanup of the site? How does it work if that is what their aim
is?
Mr. Witt. Thank you for the question, Senator.
It hasn't worked because, as has been pointed out, and Mr.
Fox is certainly more of a legal expert on CERCLA than I am,
but it hasn't worked. As was pointed out, even if EPA does not
sue you, everybody else involved in a Superfund case can sue
you.
In PVSC's case, again, we do not make dioxin. We do not
profit from it. We do not use it. Yet, for the last 8 years,
since 2016, by having been drawn into this lawsuit, PVSC has
had to expend over $4.6 million in legal fees defending this
case against a contaminant that is not our responsibility, that
we didn't put into the river. We didn't make it; we do not use
it, nevertheless, we are force marched through this lawsuit.
Forty other public entities are being force marched through
lawsuits related to the Diamond Alkali site by the parties who
are liable for putting this, again, most toxic chemical that
human beings know how to make that is not radioactive, into the
environment. There is no way to get us out except by settling
with us directly. That is what EPA is trying to do, but it does
not stop you from being involved in the lawsuit. That is the
same exemption we are asking for under PFAS. We are trying to
be part of the solution here. We are not part of the problem.
Senator Capito. Well, the good news is, I think that what I
hear the panel saying is, we are at the precipice, we are so
much closer at addressing this issue from our standpoint, and
if we can get the drinking, let's talk about the drinking water
standard. Let's just say you are a small water system, and Mr.
Fox, this is for you, in West Virginia.
Let's say you have a certain level that you have to, that
you can not pass through. We have the technology and the carbon
filters, so they purchase those, which are several hundred
thousands of dollars for a small water system. They catch it,
hopefully all of it, but there might be some that could get
through. We know that is always a possibility.
I guess, what disproportionate problems would they have at
a small water system because they can not bear the brunt of it?
Then the other question is, and we have learned this through
our investigations is, how do you destroy it? How do you, once
you catch it, what do you do with it?
That is a big issue in our bill that we have looked at, is
to try to award prizes to people that can figure out how to do
this. If you burn it, does it go back up in the air and people
are breathing it? All these kinds of issues. Mr. Fox?
Mr. Fox. Thank you for the question, and I think you are
raising a really important point in two ways. First of all,
municipal solid waste landfills are not going to take that
material if they do not have passive receiver protection,
because it will incur liability for them, so that granulated,
activated carbon filtration systems will not have a place to
go.
They will have to go to hazardous waste landfills or
hazardous waste incinerators, if they will accept it. Order of
magnitude more expensive for these small water authorities who
are wastewater treatment plants, talking about five, eight
times more expensive, not including the transportation costs.
It will have an incredibly disproportionately negative effect
on those industries, because they will have no place to send
them. I will say, that they may not even be able to dispose of
them in the hazardous waste incinerators and landfills because
they may not be compatible with those facilities.
Senator Capito. Yes, that is a big issue. You know, we are
talking a lot of technicalities here. I think what we are
bypassing a little bit, not because we want to, but because we
are trying to get to the right things, are how safe is this in
our water, is there a level, how important?
I am just going to go really quickly, I know I am almost at
my time, Secretary Kenney, let's go through quickly, what will
the Safe Drinking Water Standard mean in this discussion? In
other words, how important is that, and how quickly should that
have been done? I think, yesterday, but that is my opinion.
Really quickly.
Mr. Kenney. Senator, I agree. It should have been done
yesterday. We are looking forward to it coming out. How
important is that is it will set a north star by which
utilities will have to, anyone discharging, I should say,
treating for drinking water, will have to meet that standard.
It will require some technology to be invested, but that is
not a bad thing here, is that once we have a standard, that is
usually what spurs the innovation to create the technology. I
will keep it brief and hold it there.
Senator Capito. Ms. Bowers, do you have anything to add
there?
Ms. Bowers. Yes, thank you, Senator.
I would just add that, if EPA finalizes that drinking water
standard under the Safe Drinking Water Act, that standard could
potentially be incorporated as a standard for cleanup under
CERCLA. That determination is a site-specific one, again, but
the statute does have room for drinking water.
Senator Capito. That might beg the question as to, do you
go to the CERCLA thing before you have the safe standard. I
will move one to Mr. Faber really quickly.
Mr. Faber. Just a reminder, Senator, that even if the
President finalizes the drinking water standard today,
utilities will have three to 5 years to get into compliance. I
think Mr. Fox's point is an important one that, while utilities
should not be sending their GAC filters to subtitle D
landfills, they can and should send them to subtitle C
hazardous waste landfills. Indeed, they should have been. This
is one of the things that I find troubling.
Senator Capito. Well, I want to stick on the water
standard. Sorry about that, because I am out of my time.
Mr. Witt, do you have a comment on safe drinking water and
how that might impact you?
Mr. Witt. Again, I concur with the panel that it is an
important step forward and needs to happen. Again, it is a
matter of putting the right regulation in place at the right
time, though.
Senator Capito. What comes first? Yes, Mr. Fox?
Mr. Fox. Yes, that is really what I was going to say. It is
a sequencing issue. It has to be regulated under those other
statutes first before CERCLA.
Senator Capito. Before it goes to CERCLA. Thank you.
Senator Carper. Thanks for those questions.
Next, will be Senator Stabenow, and then, I think, Senator
Ricketts.
Senator Stabenow. Thank you, Mr. Chairman and Ranking
Member. This is so important. This is an issue that I have been
focused on for years. It affects so many communities, as we
know, and more importantly, lives.
Michigan as a manufacturing powerhouse over the years
certainly has been in a very serious position now as we are
uncovering all of this. I appreciate the State of Michigan
really being at the front of the line of studying where the
contamination is and taking action at the State level, which is
also important.
I want to just refresh, because when we look at past
defense budget bills, I am pleased that my legislation to study
the impacts of PFAS exposure and improve nationwide PFAS
testing and hold Federal agencies accountable for contamination
on military bases has passed, so that is now law. We worked
together to get historic funding to address PFAS in the
infrastructure bill that we all worked on together, which was
very important.
I continue to push EPA to meet the objectives outlined in
the strategic road map, which needs to happen, so we have moved
forward. We have made a lot of strides. There is so much more
to do, and it is not being done quickly enough, which is my
main concern.
One place where Michigan has faced significant challenges
is when it comes to working with the Department of Defense.
When we look at contamination around military bases, PFAS has
been detected on at least 10 bases in Michigan, at one base,
the former Wurtsmith Air Force Base in Oscoda, Michigan, we
have readings as high as 213,000 parts per trillion, and DOD
has kept the community waiting on a cleanup plan for 14 years.
Ms. Bowers, in your testimony, you mentioned that CERCLA
liability extends to the Federal Government. DOD would be part
of that, in terms of liability. That said, my understanding is
that this designation would ultimately not change much about
DOD's cleanup responsibilities, their site prioritization, or
the speed of remediation. Is that correct?
Ms. Bowers. Thank you, Senator. That is likely correct. DOD
is required under the Defense Environmental Restoration Program
to respond to pollutants and contaminants, as well as hazardous
substances at military installations. Designation of PFAS as a
hazardous substance wouldn't change that requirement.
Senator Stabenow. We still need some fixes in this area,
that is for sure.
Secretary Kenney and Mr. Faber, can you speak more to how
Congress can help ensure more expeditious cleanup of DOD sites
like we are needing to do in Michigan?
Mr. Kenney. Yes, and Senator, thank you for that question.
With 715 bases nationally, and Michigan and New Mexico share a
lot in common here, that you can look at DOD's website today
and they are cleaning up to 70 parts per trillion, well above
the proposed drinking water standard, which means that even
when they are finished their CERCLA cleanup, and let's say your
constituents, after 14 years, get that satisfaction, the
cleanup is not adequate and it is not protective of the science
that EPA is using.
We still have a problem that CERCLA is perpetuating, which
is why the drinking water standards and RCRA are so important
for Congress to take action on, especially listing those PFAS
chemicals as hazardous wastes and compelling then States to
then implement those on a faster timeline with everybody, not
just the public sector, but the private sector, as well.
Senator Stabenow. Thank you. Mr. Faber?
Mr. Faber. Yes, Senator, I was just in Michigan visiting my
son in Ann Arbor. He lives with nine other young men, and so
you can imagine what the kitchen must look like. I started to
take some pictures, and sure enough, they all came down and
started cleaning up the kitchen.
One of the benefits of designating PFOA and PFOS is that
the releases, or threatened releases of hazardous substances
would now have to be disclosed. When the DOD transfers a
property to civilians, they would have to disclose the presence
of PFOA and PFOS in the groundwater and the soil.
One of the big benefits of this designation is that while
DOD is effectively treating these chemicals as hazardous
substances thanks to some changes you made to the NDAA, there
would be more disclosure; there would be more transparency.
Senator Stabenow. Thank you.
Thank you, Mr. Chairman.
Senator Carper. Thanks so much for your work on this, and
certainly for being with us today.
Another former Governor here, he and I are recovering
Governors, but we care about this issue with our old hats on,
and certainly with our current hats on. Please proceed.
Senator Ricketts. Great, thank you very much, Mr. Chairman,
and thank you to our witnesses for being here.
Mr. Faber, in an Environmental Working Group press release
from 2021, you stated ``For decades, these corporations have
knowingly contaminated our drinking water, food supplies, and
the blood of virtually every person on the planet with these
highly toxic chemicals. It is long past time that these
polluters paid for their malicious drive toward profits over
public health.''
That 2021 statement seems to indicate your support for
polluter pays and that polluter pays model. However, the
current lobbying that you are doing seems to be contrary to
that stance. Without passive receiver exemptions, entities who
did not produce, manufacture, intentionally use PFAS for
commercial benefits will now be on the hook for someone else's
mistakes. I think Mr. Witt has described that.
It appears you have shifted beyond the polluter pays model.
What prompted this change, and why are you against providing
liability protections for passive receivers, given that this
aligns with the principle of holding contaminators accountable?
Mr. Faber. Thank you for the question, Senator. I think it
is a mistake to refer to folks as passive receivers. Landfills
and waste managers, water utilities, elect to receive these
wastes. They can refuse these wastes. They can require their
customers, and their customers, to pretreat these wastes. They
can require them to provide records of what is in these wastes.
As I mentioned in my testimony, this is nothing new for
waste managers and water utilities. There are hundreds of these
hazardous substances that they manage every day, and while I am
sure that PVSC is an incredibly responsible water utility, not
all water utilities are as responsible as PVSC. We are all
familiar with Newark, Jackson, and of course, Flint. We are
probably less familiar with other water utilities that have not
responsibly managed hazardous waste. I am happy to provide
those examples to you.
Senator Ricketts. Are you concerned though, that again, Mr.
Witt's example of, even if the EPA is not holding them
accountable, but a polluter who is actually using this, comes
after and sues them after the fact, he is still going to be in
this litigation?
Mr. Faber. No. Thank you for the question. As Ms. Bowers
talked about, Congress added Section 113(f)(2) to CERCLA to
address the contribution rights and to shield parties like
wastewater utilities and landfills from being subject to
additional litigation for matters addressed in a settlement.
When they settle under 122 of CERCLA, they can use the
contribution shield under 113 to be immune from future
liability for matters addressed in that particular settlement.
That provides a powerful incentive for utilities and waste
managers to settle with EPA so that we can focus, EPA, the
courts, can focus on the responsible parties, the real
polluters, the folks who have contributed most of the waste to
a listed site.
Senator Ricketts. Mr. Witt, given what Mr. Faber just said,
why are you still in litigation and have spent $4 million on
litigation with the polluters who are suing you when you didn't
actually use any of those chemicals?
Mr. Witt. Thank you for the question, Senator. Nothing is
ever as simple as we would like it to be, and especially under
CERCLA, which is widely acknowledged to be one of the most
confusing Federal laws, probably, on the books. There are still
avenues of liability that private actors can use to keep public
entities involved in these suits. When I talk about public
entities, let's remember who we are really talking about here,
which is the public. It is the ratepayers.
PVSC does not print money. That $4.6 million came from our
ratepayers. It is $4.6 million that is not going into improving
our plants. It is $4.6 million that is not going into rate
stabilization funds so that our lower income users can afford
to continue to have sewer and water service and not have to
make a choice, do I pay my sewer bills, or do I have to choose
for my child so that they can go to school?
It is just money that goes into a black hole. It takes time
to get you settled out, and while you are getting settled out,
you are still incurring all those legal costs. That is why.
Senator Ricketts. Mr. Fox, I have heard significant
concerns from our agricultural community over the potential
liability American farmers will face because of EPA's CERCLA
designation. The agriculture sector's concern reflects their
concern of CERCLA's normal application of fertilizer exemption
is insufficient to shield them from liability under CERCLA.
Based on your experience in prior CERCLA litigation, what
is your view on the agriculture community's concern about this
exemption?
Mr. Fox. Thank you for that question. I am going to answer
that, and then I want to respond to your last question too, if
I may.
You are completely correct. That exemption would not
protect them as it is currently standing. In order to be
eligible for that exemption, you have to meet standards under
the Clean Water Act standards for land application of sewage
sludge.
There are no such standards for PFAS, and so you could be
both retroactively liable because there were no standards, and
then when they are promulgated, you are going to have to meet
those standards. We do not know what they are yet.
That exemption is not available now for land application,
normal application of fertilizer for PFAS because no standards
exist.
I have to put my lawyer hat on now for 1 second. That is
what I do, but I do want to answer this question about
contribution protection that Mr. Faber said, because that is
not correct. I argued this case in the Third Circuit. There is
a Supreme Court case right on point.
If a private party has not been sued, so if the government
does not take an action against a passive receiver, they do not
have contribution protection. Even if they get contribution
protection, it does not protect them from another PRP who
either has not been sued or settled. Any of those other PRPs
who have not themselves been sued or settled can make an action
against the settling passive receiver, and that settling
passive receiver will have no protection under the contribution
provisions of CERCLA.
Senator Ricketts. Again, if I can, because you said, you
are using some acronyms there, and I am not sure. PRP, so you
are saying, somebody who is actually doing the polluting, who
actually may have been sued but hasn't settled can still sue
somebody like Mr. Witt?
Mr. Fox. Absolutely, that is Supreme Court law. They would
have that right to take that action. As Mr. Witt said, I have
been involved in doing this for a very long time. I have cases
that have gone on for over 25 years. They are very expensive.
They are very resource intensive. That is going to put a
tremendous burden on small players and other passive receivers.
Senator Ricketts. Great. Thank you, Mr. Fox.
Thank you, Mr. Chairman.
Senator Carper. Thank you. Senator Cardin is next.
Senator Cardin. Thank you, Mr. Chairman. I want to thank
all of our witnesses.
I want to start by thanking CRS for the services you
provide us, generally. We are asked to deal with a lot of
subjects, like PFAS, that are not part of our background or our
knowledge base, and you bring us up to speed pretty quickly. I
just want to thank CRS for all their services over the years
and for your testimony here today.
I want to just acknowledge what some of you have already
acknowledged about our leadership of this committee, Senator
Carper and Senator Capito. They have taken on this issue. As a
result, we have been able to make significant progress in
identifying this hazard, getting resources to deal with it, and
setting a path that we hope will lead to stronger public health
attainment. I just want to thank our leadership on the
committee for doing this.
You have my attention, not so much on the cows in your
State, but the rockfish in my State. We have taken a look, and
we have specifically targeted for collection and analysis for
PFAS. At eight separate locations, PFAS was collected for
striped rock bass, and some of those sites resulted in
consumption advisories.
This is an issue that is affecting all of our States and
our economies, and we need to do things about this.
I want to just underscore what we can do to stop the
pollutants and to deal with the public health challenges that
we confront today. We will talk about the liability issues; we
will talk about cleanup issues. All of that has to be done.
We, for example, I am proud in Maryland that the Applied
Physics Lab at Johns Hopkins University is looking at an
adaptive and inexpensive off-the-shelf membrane that allows
water to pass, but captures the destructive chemicals with
whiskers or fibers of synthetic element engineered by APL. The
good news about this is it removes, they believe, 90 percent of
the PFAS. The end product is acceptable in landfills. That is
the type of innovation and technology that is a win-win-win
situation.
As has been pointed out, some of our water managers, they
have a dilemma on making improvements based upon the fact that
they have to use their ratepayers, which is a political
challenge and a financial hardship to the ratepayers.
What can we do to bring these types of technologies to the
market faster and provide the resources so that our water
treatment facility plants can make these improvements?
Senator Capito is absolutely right. We have some very small
operators. I have been to some in my State of Maryland, and
they just do not have the capacity within their ratepayers to
make these types of improvements.
What can we do to get these type of technologies developed
and implemented so that we can have safer water consumption in
all parts of our Country? Any suggestions?
Mr. Faber. Senator, first of all, thank you for asking us
the question. As we have heard, Congress has already provided
$10 billion in the Bipartisan Infrastructure Bill to help
utilities. What we have not heard about is the now $13 billion
and counting that private water utilities and public water
utilities have recovered under State law claims through
litigation.
There are more resources coming through private recovery.
To Senator Ricketts' question, the manufacturers are not
completely escaping liability. They are paying, but they are
paying through State law claims before a multidistrict
litigation in South Carolina, and they will be paying more.
In all likelihood, Congress will have to provide more.
There are certainly costs that will be required. Let's not
forget the costs to the people who have been poisoned without
their consent or knowledge.
Senator Cardin. My point is that $10 billion is absolutely,
incredibly important, and it has made a huge difference, and it
will address these issues, and we will be able to offer certain
incentives.
As I go through my State and talk to our water managers,
the capacity and financial abilities are still being
challenged. If we want to advance technology, particularly with
smaller water systems, what do we do here?
Mr. Faber. Can I just quickly add that, the technology is
available, and according to EPA, in their analysis of the
drinking water standard, only a few thousand systems out of
many thousands are out of compliance, have more than four parts
per trillion.
Senator Cardin. I understand that, but I want to go beyond
that. I want to get these PFAS technologies implemented.
Mr. Fox. Landfills are solution providers, and the way we
have structured what we have asked for presupposes that once
there are PFAS standards for leachate, for example, that in
order to have liability relief, you have to meet those
standards. What that does is create technological incentives to
create technology to treat that properly.
Landfills are not waiting for that. In anticipation of
that, they have pilot studies doing exactly what you said,
Senator. They have foam fractionation. They have super critical
water oxidation pilots, plasma, reverse osmosis.
That is what you need. You need to establish this so that
you create the proper technological incentives for passive
receivers like landfills or water utilities to come up with the
technology.
What we propose does that, and you can see by the way that
we are interdependent, because the waste that they generate
comes back to us ultimately. As you said, we want that to be
something we can accept. We are already working on that
technology.
Senator Cardin. Thank you.
Thank you, Mr. Chairman.
Senator Carper. Senator Cardin, thanks so much for those
questions.
Senator Padilla, I think, was here earlier, and he has come
back. Thanks for joining us. You are recognized now. Thanks.
Senator Padilla. Thank you, Mr. Chairman.
I am certainly glad to be here today and to hear from our
witnesses on the issue of PFAS and CERCLA liability, because
addressing PFAS pollution has been a priority of mine since I
joined the Senate.
Just this morning, I spoke to and heard from a number of
water agencies at the Association of Metropolitan Water
Agencies where this was a key topic of conversation. We have
been tracking the issue very closely since EPA first issued
their proposal to designate two of the most widely used PFAS as
hazardous substances under CERCLA.
California is facing numerous threats to our drinking water
and sanitation infrastructure, from water supply challenges due
to sustained droughts, to water affordability challenges, which
I focus on as the Chairman of the EPW Subcommittee on Water,
Fisheries, and Wildlife, to the impacts of PFAS, lead, and
other contaminants as well. I see the challenges that
California water systems are facing when it comes to investing
in infrastructure and delivering on our promise, our
obligation, frankly, to provide clean drinking water and
wastewater services to every Californian and every American.
Thank you, Chairman and Ranking Member Capito, for allowing
us to have this conversation today, because this is a complex
issue that deserves nuance and careful deliberation.
Ultimately, I think we can all agree that we want to hold
polluters responsible and accountable for their contamination,
and we need to develop the plans to remove PFAS from our water
systems.
Mr. Faber, I am looking at a letter that you included in
your testimony from EPA to Members of Congress about EPA's
efforts to develop an enforcement discretion policy to focus on
PFAS manufacturers. In the letter, EPA says they do not intend
to pursue entities like water utilities or local fire
departments, and they outline pathways for settlements to
protect against third party cost recovery claims.
Can you talk about how EPA has historically used its
enforcement discretion when dealing with utilities and
municipalities and what ways going forward may be able to
protect them and other minimal contributors from third party
liability?
Mr. Faber. Thank you, Senator, and as EPA has indicated in
this letter that you referred to, they do not plan to focus the
responsibility for this PFAS contamination on water utilities.
That is nothing new. It has been a longstanding policy
under EPA's municipal settlement policy, administrative
settlement policy, by using Section 122 to quickly settle the
liability of water utilities and other peripheral players and
to focus on those who are truly responsible for creating the
pollution caused by hazardous substances.
The other thing I will just quickly mention is, we have not
yet seen the enforcement discretion policy that will accompany
this final rule. It seems to me that it would be something
Congress would want to see before asking whether to amend, in
an unprecedented way, CERCLA to address a single chemical.
The other thing I will just quickly mention is, we filed a
Freedom of Information Act request this morning to get all of
the settlements ever that EPA has ever completed with water
utilities and landfills so that we can show you the receipts,
so that we can show you that for as long as EPA has exercised
its authority under 122 and 113, that they have quickly,
quickly, resolved the liability of water utilities and
landfills to focus on those who should be responsible, the
polluters.
Senator Padilla. Thank you for that.
Now, I, too, have heard, as all of you have, from water
utilities and others about the potential for truly responsible
parties, like a 3M or DuPont, who have been held liable for
response costs to try to deflect by bringing in water utilities
or other entities into these third party lawsuits.
Ms. Bowers, I know this was discussed earlier in the
hearing already, but your written testimony outlines that EPA
enforcement discretion wouldn't necessarily protect covered
entities in this scenario. Can you walk us through what the
options would be for water utilities in this scenario, where a
reliable party brought that into a third party contribution
claim?
Ms. Bowers. Sure, thank you, Senator. Just to make sure
that I understand the question, this would be in an instance
where a water utility has been brought into an enforcement
action, not by EPA, but this would be a third party
contribution?
Senator Padilla. Correct, the truly liable.
Ms. Bowers. Sure. If in that instance, EPA has not entered
into a settlement resolving that utility's liability under
CERCLA, then that utility could still be liable under CERCLA,
assuming no other exemptions apply. As I mentioned before, some
of those other exemptions and defenses could potentially be
relevant in this context.
How that could work is, if another entity has either
incurred cleanup costs or has itself been the subject of
enforcement action or has resolved its liability, that entity
would have the opportunity to file what is called a third party
contribution claim. They may, as part of litigation or as part
of a new lawsuit, file a lawsuit against other potentially
responsible parties. As I mentioned, if those parties have not
themselves resolved their liability to EPA or a State under
CERCLA, then they could still be subject to suit.
Senator Padilla. Okay, so something else to look for in the
proposal going forward. Thank you.
Thank you, Mr. Chairman.
Senator Carper. Senator Padilla, thanks so much for those
questions.
The subcommittee that has significant jurisdiction over
these issues is chaired by Senator Merkley, and he is next in
the line of questioning. Senator Merkley?
Senator Merkley. Yes, thank you very much, Mr. Chairman.
Both my subcommittee and Senator Padilla's subcommittee are
directly affected by water and by chemicals, and PFAS is a big
deal.
I want to start, Mr. Faber, to followup on the question
from my colleague from California. I believe that the final
regulation is expected the first week of April, and then a
followup memo about enforcement strategy. Is that what you were
referring to, were you referring to those two items when you
said Congress might want to wait and see, kind of, read that
ink before proceeding to exempt a specific entity or a specific
chemical under CERCLA?
Mr. Faber. That is right. Thank you, Senator, for the
question. Hopefully, we will see both of these final rules
soon, the drinking water rule and the hazardous substance
designation.
When EPA issues the hazardous substance designation, they
will also issue an enforcement discretion memo that
memorializes how they plan to address the liability of folks
like water utilities, landfills, airports, fire training
facilities. They have so far indicated in all of their writings
and in their briefings that they plan to treat those folks as
peripheral players who will be quickly settled and will not
ultimately bury the cost of cleanup associated with PFOA and
PFOS. That is right.
Senator Merkley. But let us say we did pass a provision
related to the liability of utilities, because utilities might
say even just the court costs might be significant. As
mentioned by the Chairman, you have often, very small utilities
serving small communities that have no ability to even sustain
the infrastructure they have, let alone bring it up to common
standards, and certainly not to pay for lawyers, et cetera.
This would not, if that were to happen, that would not
alleviate the role of a utility to test for chemicals and to
inform the public. I want to clarify that utilities, even if
the pollution is upstream, seem to have, a water utility, a
specific responsibility to their customers for transparency to
know what is in the water, so if there is PFAS in the water,
that the public can know.
Would liability provisions at all affect that
responsibility?
Mr. Faber. Thank you for the question, Senator. Thanks to
this committee, utilities are now currently testing finished
tap water for many PFAS. Those results are now rolling in.
Once these are regulated contaminants under the Safe
Drinking Water Act, utilities will have a duty to test for them
to share those results with the public. That is as it should
be. Consumers should know how much is in their tap water and
whether utilities are in compliance with these new drinking
water standards.
Senator Merkley. Okay, but this chemical family has
sometimes been described as hundreds of elements or a thousand
different kinds of cousins. Does that affect the ability to
test, or can one test kind of collectively for things that fall
into this category?
Mr. Faber. To their credit, the EPA developed a drinking
water standard that includes a mixture of what are called long
chain and short chain PFAS, so that the treatment technology
that will be adopted by PFAS will not simply reduce the six
PFAS that would be part of the drinking water standard but
would reduce many of the PFAS.
It is also really important to note that adopting this
treatment technology will remove other co-contaminants, other
things from our water, in particular, a class of chemicals
called total trihalomethanes that increase the risk of bladder
cancer.
While we certainly talked a lot about the cost to
utilities, it is really important to remember that every year,
there are thousands of people who lose their lives to cancer,
especially testicular cancer, kidney cancer. There are many
people who lose their lives to cardiovascular disease
associated with PFAS in their drinking water. There are other
costs, not just the cost borne by utilities to provide safe
water.
Senator Merkley. Back when I was in the State legislature
in Oregon, we spent a lot of time exploring the issue of PFAS
in carpeting and upholstery, which was related to kind of
trying to decrease the fire hazard. I had little tiny kids
crawling around on the carpet, and I was appalled to find out
that my son's and daughter's noses picking up those carpet
fibers were picking up PFAS almost from birth.
Do we have any sense of how the risk of PFAS in drinking
water compares to the risk of PFAS on Teflon pans, popcorn
poppers, pizza delivery plates, and carpeting and upholstery?
Mr. Faber. We are learning more about that, as we talked
about earlier. The single most effective way that we can reduce
the amount of PFAS that is in our blood is finalizing this
drinking water standard and getting utilities to work taking it
out of our water.
One of the other loopholes that we really need to close is
the loophole that allows companies to use PFAS in ways that are
truly unnecessary, in our clothing, in our carpets, in our
cosmetics, in our food packaging. One of the ways that we are
all being exposed, unnecessarily, to PFAS is by allowing
companies to use PFAS in these everyday products we bring into
our homes.
Senator Merkley. Thank you very much.
Thank you, Mr. Chairman.
Senator Carper. Senator Merkley, thank you.
We have been joined by Senator Lummis, who has spent a lot
of time on this issue. Thank you for that, and thank you for
being here today. You are recognized.
Senator Lummis. Thank you, Mr. Chairman. I appreciate you.
Senator Carper. You bet.
Senator Lummis. Mr. Fox, can you please explain why a
nationwide enforcement policy does not adequately address the
liability concerns for passive receivers?
Mr. Fox. Sure. It is similar to what I testified to, which
is, and Ms. Bowers has also stated that, that is there is no
settlement with the passive receiver, they are completely open
to any lawsuit by a third party. Even if the passive receiver
has settled with the government and obtained contribution
protection, if the third party has not settled its liability
with the government, then they can sue them. It does not
provide that protection.
If I might, I want to give you a specific example that I
was involved in about this back in 2002. There was an EPA
policy, same thing, discretion, not to go against prospective
purchasers who wanted to redevelop brownfield sites. It was an
incredibly cumbersome policy. It did not work.
As a result of that and the inadequacy of that enforcement
policy, what happened was we got the 2002 Brownfields
Amendments, which created an exemption under the statute for
exactly those circumstances, which actually was a win-win for
everybody.
Senator Lummis. Is it true that Congress has amended CERCLA
liability in response to the increased inefficiencies in
administrative costs associated with implementing a nationwide
enforcement discretion policy?
Mr. Fox. Absolutely, and that is the example that I just
gave you, which is they had a very ineffective enforcement
discretion policy for prospective purchasers. Our firm actually
was involved in one of those. It took 18 months to even get it
done. It does not happen very much, and so we needed a
statutory exemption, and that is exactly what happened.
Positive for everybody.
Senator Lummis. One of my concerns, and I once upon a time
had some experience with RCRA, and I am a big fan of RCRA. It
really bailed out a problem I was having, because I live right
next door to a refinery.
There are volumes of case law relating to designating a
chemical as hazardous under RCRA and the Clean Water Act and
the Clean Air Act. For designating a hazardous substance
directly under CERCLA, there is none. Correct?
Mr. Fox. There is absolutely no precedent in 44 years of
CERCLA for EPA to ever designate something directly without it
first being designated under the other statutes that you
mentioned. Not one example of that.
Senator Lummis. If utilizing a tailored approach under RCRA
could address some of the liability concerns of passive
receivers, do you think that it is a problem that the EPA has
dedicated such minimal resources into using RCRA to regulate
PFAS?
Mr. Fox. Currently, there are two proposed regulations
under RCRA that would solve part of this problem. One is to
list nine separate PFAS compounds as hazardous constituents and
another one to say that those compounds could be subject to
what is known as RCRA corrective action. At the sites, EPA
could use their authority at RCRA corrective actionsites to
clean up those sites. Just to speak to what the gentleman from
New Mexico was stating, a lot of those DOD sites are RCRA
corrective actionsites.
Senator Lummis. Thank you.
I am going to turn to Mr. Witt. In your view, and I want to
read you something by the Environmental Working Group in
November 2023. They expressed concern about potential new
measures. Here is the quote: ``Congress is considering new
loopholes and exemptions for PFAS polluters that will let them
off the hook for PFAS contamination they may have contributed.
Congress must hold polluters responsible.''
What I am focused on and very concerned about are these
passive receivers and the expense that a passive receiver might
incur to clean something up when it did not contribute to the
contamination for which they are liable. In your view, does
this characterization about loopholes and exemptions accurately
reflect the role of the Passaic Valley Sewerage Commission in
relation to PFAS contamination?
Mr. Witt. Thank you for the question, Senator.
No, I absolutely disagree with that characterization of
PVSC or any wastewater treatment or drinking water plant as a
polluter, in this case. As we have stated, we are passive
receivers of this contaminant or these contaminants.
I know it was stated earlier that, well, you can just say
you are not going to take them anymore. Well, we can not,
because it gets into our sewer system one way or another. It
gets into our sewer system from people's homes. We can not just
tell people, well, we are not going to take your sewage
anymore. We can not tell landfills, well, we are not going to
take your leachate anymore, and you are just going to have to
figure out some other way to dump it somewhere, and that is
what will happen.
If wastewater treatment plants can not take this material,
which is what our job is, is to treat wastewater, if we can not
take it, where is it going to go? Who is going to be treating
this? You want us treating it. This is what we do all day every
day, and we are very good at our jobs.
We want to be part of the problem of solving PFAS and
getting it out of the environment. When we have to do things
like fight 28-year-long CERCLA cases, or 25-year-long CERCLA
cases, or however long, we can not do that, because that is
where our resources are going.
Let's remember something about the contribution protection,
which hasn't been brought up yet, which is an extraordinarily
important point. You can not get a settlement with EPA under
CERCLA unless they designate you as a PRP, as a potentially
responsible party. Contribution protection does not just exist
out there in the ether. You have to be brought into the case,
and under CERCLA, liability is joint and several.
That means, once you are in as a PRP, you could be
responsible for the entire cleanup cost. That means the public
could be responsible for the entire cleanup costs. That is what
we have going on in the Diamond Alkali site right now. There is
a proposed consent decree for 85 private parties in that case
pending before Federal court in New Jersey right now, and yet,
there are public entities who are still in it.
If those parties get out, we are still there. We are still
potentially on the hook. Let's not forget, when we talk about
enforcement discretion and what happens with that, and the
protections you might get, they are really quite ephemeral. The
way that we get protection under this is to get this exemption.
It is not a loophole.
Senator Lummis. Gentlemen and lady, thank you so much for
being witnesses today. Mr. Chairman, I yield back.
Senator Carper. Thank you so much for those questions.
Senator Capito needs to leave, but she is going to ask,
maybe, another question or two, and then Senator Whitehouse has
joined us. Thank you.
Senator Capito. Yes, I really just had a comment, and
thanks. I do not know if Senator Whitehouse gave me a few
minutes, but thank you, Senator Whitehouse, for that.
Senator Carper. Yes, he did.
Senator Capito. Thank you, Senator Carper.
I have been listening to this. I want everybody to know who
is here testifying and our members to know that this is a
public forum to get into sort of the nitty-gritty of what we
have been trying to work on in private by getting stakeholders
from every single aspect of this issue. We have had, to the
Chairman's credit, we have had two very major roundtables to
understand the issue as well as we possibly can, so now we are
honing in on it.
I guess my final comment would be, I think there is
agreement that third party or passive receivers are not what we
are aiming at here. We are aiming at the polluter pays. The
polluter should pay the cleanup and pay the cleanup.
The third parties, because of past 11 exemptions in CERCLA,
or because of what Mr. Witt just mentioned in the statute of
CERCLA, do not feel like the EPA writing a letter of
enforcement discretion or mentioning enforcement discretion,
and of course, that only lasts as long as that EPA lasts, I
would imagine, provides that bright line, I guess I would use
that term.
Mr. Faber has said that this will be written into the
verbiage that third party water systems and wastewater systems
and landfills are not where we are aiming here, or not to be
held liable. If we all agree on that, why wouldn't we just
agree on putting it in the statute and making it a bright line
and making it very clear?
It is not a question, Mr. Faber. That would be my parting
thought, because we have a lot of agreement on a lot of this,
and I think the more explicit, I am not an attorney, but the
more explicit we can make this, I think the better it is, so
that Amara and others that have been affected by this will have
the peace of mind that the greatest protections are being
offered to her and her family for the clean water that they
drink. Thank you, Mr. Chairman.
Senator Carper. Thank you for those closing thoughts.
Senator Whitehouse, as you heard earlier, we have members here
with different background, some in business, some in
government, some in military. One of the best legal minds in
the U.S. Senate is not me, but it is the man that I am going to
yield to right now. Sheldon, thanks for joining us.
Senator Whitehouse. When I used to travel with Senator
McCain, we would often meet the head of State in a foreign
country, and he would introduce me sometimes by saying, ``This
is Senator Whitehouse. He is a very well-regarded lawyer. By
the way, do you know the difference between a lawyer and a
catfish?'' The head of State would look confused and befuddled,
and he would say, as many of us have heard him say, ``Well, one
is a scum-sucking bottom feeder, and the other is a fish.'' It
always got the conversation with the foreign head of State off
to a really nice start that way.
[Laughter.]
Senator Whitehouse. Ms. Bowers, are there steps that
passive receivers can take to preemptively protect themselves
or reduce their exposure to third party litigation under
CERCLA?
Ms. Bowers. Thank you, Senator, for the question. One of
the potential exemptions that we have talked a little bit about
today and that I mentioned in my written testimony is the
federally permitted release exemption. This just provides that,
if a release is in accordance with one of a number of federally
issued permits under several Federal environmental laws, then
there is no liability under CERCLA to be associated with that
release.
The specific types of permits are enumerated in the
definition. Several Clean Water Act permits could potentially
be applicable, could be a basis for that exemption. It is a
very site-specific inquiry. It depends on the terms of the
permit, and there are some open questions right now about the
extent to which that exemption would apply where a permit does
not either specify discharge limits for PFAS or otherwise
specified best management practices. There is some suggestion
that the exemption may still apply. It is somewhat untested in
the courts.
Senator Whitehouse. A passive receiver that has a Federal
permit would be well-advised to pursue an upgrade to that
permit for PFAS?
Ms. Bowers. It would certainly involve discussions with EPA
or with a State permitting entity regarding the terms of the
permit and regarding what discharges have been disclosed as
part of the permitting process. Again, though, it is a very
site--specific determination.
Senator Whitehouse. Yes.
Mr. Faber, are there many other chemicals that are fairly
ubiquitous in the environment like PFAS, and are there lessons
from the experience with those chemicals as to how they have
been handled by EPA and under CERCLA?
Mr. Faber. Thank you for the question. As we have talked
about, there are more than 800 hazardous substances. More than
600 are still being produced. More than 300 are being produced
in high volume, including sulfuric acid.
Hundreds are already found in landfills. Sixty-six are
found in our drinking water systems, and to answer, I think,
both of your questions, where we might politely disagree, is
water utilities, wastewater utilities in particular can
certainly require their customers to pretreat their wastes.
Some do, in Michigan, for example. The State has a pretreatment
program. It is, unfortunately, far too rare. That would help
reduce, ultimately, their liability.
Water utilities could have gone to their State regulators
and modified their NPDES permits to address PFOA and PFOS,
while the manufacturers hid the truth of these harms from you
when you were writing these lists that got incorporated by
reference into 102. It is not a secret that PFAS is a toxic
forever chemical, and it has certainly not been a secret to
water utilities. They could have amended their permits to
address those releases and taken advantage of the permitted
release liability shield. They still can. They could today.
Very few of them have. Very few are requiring the folks who
are sending them waste to pretreat their wastes, which they can
do. Very few of them have gone to their State regulators and
said, I want to amend my permit to reduce my releases of PFAS
so that I can benefit from the liability shield Ms. Bowers
talked about. We know that because we have been dealing with
hazardous substances for decades.
Senator Whitehouse. Thanks very much. Thank you, Chairman.
Senator Carper. Thank you, and thank you for sharing the
wisdom of John McCain. John McCain and I served in the Navy
together for many, many years. He was a hero and a great
colleague in the House and here, so thank you for invoking his
name and his wonderful sense of humor: sometimes irreverent,
never irrelevant.
I have a couple of questions. We may have another one or
two of our colleagues straggling in. We have a bunch of other
committees that are underway and we are about to start a vote,
so I will ask a couple of questions, and we will see if anyone
else arrives.
I said earlier, I like to telegraph pitches, and I will
telegraph one right now before I jump into a couple of
questions for each of you. Senator Ricketts and I are
recovering Governors. When we were Governors, we were part of
the National Governors Association. We were very active in
something called NGA, the National Governors Association Center
for Best Practices.
What we do in the Center for Best Practices is States, we
dealt with a lot of different issues, but a lot of the same
issues, and we would share ideas with one another as how to
deal with a particular challenge we were facing in our
respective States. I like to say, find out what works, do more
of that.
As we get ready to close out here in a few minutes, one of
the things I will be asking about is, is there anything we can
learn, not from necessarily the States, maybe the States, but
maybe from some other countries. I will probably ask that for
the record. This is not an issue that is peculiar just to our
Country and our people. It is something that affects people all
over the world.
Mr. Witt, Mr. Fox, a question with respect to waste and
water utility liability. In determining responsibility for
chemical contamination when cleanup is required, the EPA first
tries to define the various parties that are responsible for
contamination. The Superfund Law defines potentially
responsible parties to include anyone who has ever touched the
contamination in some way.
The EPA assigns an amount of liability for each party later
in the process. The EPA reviews each contamination situation
individually and tends to absolve water utilities of ongoing
liability, though this process may take years in some cases.
Question, again, for Mr. Witt and Mr. Fox. If there are
already legal mechanisms, there are already legal mechanisms to
solve the utility liability question, what is different about
PFAS contamination compared to other types of chemical
contamination? Why should the EPA treat PFAS contamination at
waste and water utilities differently from other hazardous
substances under the Superfund Law?
Mr. Witt, why do not you go first?
Mr. Witt. Thank you, Chairman, for the question. I think,
as we have described here today, there really are not very many
good ways for water sector utilities to avoid liability in this
case. Let me go back to the question that Senator Whitehouse
just asked Ms. Bowers about, the permit liability shield. That
is only going forward. That does not go back. CERCLA goes back
and goes forward, so it does not help for any past discharges
for which a utility could be subject to liability for.
As the Senator said, and we were talking about here, yes,
wastewater and drinking water entities can list PFAS in their
permits as a discharge, and many of us do. I can tell you that
PVSC has done that as well. The problem with doing that is
there is no set limits for anything yet. You are acknowledging
that you have it in your discharge, but you are essentially
saying, you have to tell us what you want us to do with it yet.
Now, we are very fortunate in New Jersey under the
administration of Governor Murphy and our New Jersey Department
of Environmental Protection and our Commissioner Shawn
LaTourette, they have been very proactive on PFAS, very
proactive in working with the regulated community to develop
those limits and to start gathering information, to gather
information, as Mr. Faber said, from industrial dischargers
about what PFAS materials they have in their discharge so we
can start developing those limits.
There are other States like New Mexico and Secretary Kenney
and Governor Lujan Grisham who are doing the exact same thing.
We applaud those people for doing it, and we want to be part of
that solution and keep doing it.
Senator Carper. Okay, thank you for that.
Same question, Mr. Fox.
Mr. Fox. Sure. I will just build on what was just said,
because I agree with that. I think there are two things. One is
the ubiquity of PFAS. It is probably the most common chemical
in usage and it is in everyday trash that any one of us throws
out, so that is one.
The second issue is really what was just said, and that is,
there are no standards for which you can comply with, for
example, to meet the federally permitted release exemption that
currently exists. You can not comply with that.
Think of the consequences, think of the real-world
consequences of that, which is that you would impose strict,
joint, and several and retroactive liability on people who had
no standard they had an opportunity to meet in order to get to
defense, and that is inequitable.
Senator Carper. Thank you for that.
Senator Lummis, would you like to ask another question?
Senator Lummis. I will followup, especially if it gives
someone who wants to make it here from another hearing.
Senator Carper. From another planet?
Senator Lummis. From another planet, time to get here.
Thank you.
For Ms. Bowers, CERCLA focuses liability on those who
dispose of hazardous substances. The courts created a useful
products exclusion if they are not the parties actively
disposing of PFAS-laden products or wastes, right?
Ms. Bowers. Thank you, Senator, for the question. This
doctrine that you have mentioned refers to the potential
liability of a manufacturer under CERCLA. CERCLA identifies
different categories of potentially responsible parties. It
does not identify a manufacturer as potentially liable merely
because it manufactured a product.
Senator Lummis. Could that be used, this useful products
exclusion, be used by a manufacturer of PFAS to potentially
escape liability under CERCLA?
Ms. Bowers. The way the doctrine works is that if a
manufacturer produces a useful product, sells it, sells the
useful product, distributes it, downstream it is released into
the environment by another user or purchaser, unless there is
evidence that the manufacturer sold the product as waste
specifically with the intent to dispose of the product, the
manufacturer would not be held liable for that downstream
release.
Senator Lummis. Another question, if no manufacturer of
PFAS is liable under CERCLA for PFAS pollution because of that
exclusion, who would be responsible?
Ms. Bowers. Senator, I just want to clarify that it is not
necessarily the case that no manufacturer would be liable. If
there was a release that occurred as part of the manufacturing
process itself, that manufacturer could be liable under CERCLA
as an owner or an operator, in that category.
It is not that no manufacturer ever is held liable, it is
just that by virtue of manufacturing a product, if it is
released downstream by a subsequent purchaser or user, you as a
manufacturer would not necessarily be liable under CERCLA
unless you sold the product with the intent of it being
disposed.
Senator Lummis. Okay. Can you envision it being used as a
loophole by manufacturers?
Ms. Bowers. It is a little difficult, Senator, to answer
the question. Thank you for the question, but I am just
struggling a little bit because it has more to do with the way,
with what happens to a product after it is manufactured and the
way that it is used.
It is not really something that courts have characterized
as a loophole so much as just a principle that relates to
CERCLA's overall liability framework, which is that
manufacturers may be liable under other State or Federal laws.
That was not what CERCLA was initially designed for.
Senator Lummis. Okay. Thank you very much, Ms. Bowers.
Mr. Witt and Mr. Fox, I would like to give you each 1
minute to say what you would like to say leaving this hearing
that no one has asked you.
Mr. Fox. What I would like to say is, as I said previously,
landfills are solution providers, and we have narrowly tailored
this exemption to avoid the law of unintended consequences. We
are not seeking an exemption for groundwater impacts that occur
because of landfill operations. We are really focused on the
leachate discharges, and we need an exemption that allows us
not to have retroactive liability for discharges for which we
could not meet an exemption that currently exists. Once those
standards are in place, we can only meet the exemption if we
meet the discharge requirements.
I know this committee always likes to talk about
compromise. That is a compromise. That is a sensible, real
world solution to this problem, and it creates the proper
incentives for the landfills to come up with technology to meet
those discharge limits.
Senator Lummis. Mr. Witt?
Mr. Witt. Thank you, Senator.
I would like to repeat what I said at the beginning of this
hearing, which is that I am actually optimistic from a lot of
what I have heard today, both from panel members and from the
questions from the committee.
I am going to use an analogy. I am from out west, so I am
going to use an analogy that works from out that way for folks.
It is like, if you walk out your door and there is a wild boar
standing out there and it is going to charge, I can either
close my eyes and hope it goes away or I can go back inside and
close the door and know that I am going to be safe.
That is really what we are asking for here. If we want to
stand out and hope that that boar, in the form of EPA, does not
charge us in the form of enforcement discretion, well, that is
all well and fine, but that can change, and that boar is going
to do what that boar is going to do.
We want to go back in and close that door so that there is
not the possibility here, so that we can focus our resources
and more importantly, our ratepayers' resources on putting
treatment systems in place so that we can start resolving this
PFAS problem and not paying litigation costs on the back end.
Thank you.
Senator Lummis. Thank you both. I come from a State where
we have really small water systems for which potential
liability would literally bankrupt, seriously, the water users.
I want to make sure that the cleanest water that we can deliver
to people's taps is available to them at a price they can
afford.
Mr. Chairman, thank you so much.
Senator Carper. Thank you. Thanks again for all the time
that you and your staff have invested in trying to get us to
the right place on this issue. Thank you. We are not there yet,
but working together, we will get there.
I have a couple of questions that I will ask for the record
dealing with, among other things, manufacturer liability. I
said earlier that I would ask you, is there anything we might
be able to learn from other countries dealing with similar
kinds of issues around the world that might be transferable to
us?
Let me just start with Secretary Kenney. Any thoughts you
have on that?
Mr. Kenney. Mr. Chairman, it is a great question. A couple
thoughts that do come to mind are one, as I have listened to
the discussion, utility operator training in the United States
is not on the front lines of maybe our educational systems.
Senator Carper. Although you may be surprised how often we
hear about this.
Mr. Kenney. I think what we can learn from other countries
is that public service, especially when you are learning how to
treat drinking water from a STEM perspective is something that
we could invest more in at the Federal level. That is No. 1.
No. 2, I think the other piece is when we move something
like PFAS from the waste ledger to off the waste ledge, I do
not want to call it a product once it has come out of the
ground, but let us just say we move it from waste to some other
kind of maybe commodity where the tech market can come in and
reduce it or destroy it or manage it better, I think we will
see it managed appropriately.
That, whether I am referring to work that our national labs
are doing in New Mexico or around the Country or what we are
seeing in other countries in developing technologies, that sort
of race to solve the problem, could be incentivized better in
the U.S. That would, with an anti-backsliding regulatory
scheme, I think would serve our Nation much better.
Senator Carper. Others? Ms. Bowers?
Ms. Bowers. Chairman, thank you for the question.
I do not have information today about what other countries
are currently doing with respect to research development or
regulation of PFAS. If it is of interest to the committee, we
would be happy to perform additional research and provide it
for the record.
Senator Carper. Very good. We will probably make this into
a question for the record for you. Thank you.
Mr. Faber?
Mr. Faber. Yes, thank you, Senator.
Other countries are racing to eliminate needless uses of
PFAS. We are falling behind the rest of the world when it comes
to eliminating the use of PFAS in carpets and clothing and the
things we bring into our homes, and we should really shift the
presumption.
We should put the burden on industry to prove that these
chemicals are absolutely necessary to make the things we need
in our economy, not put the burden on EPA or FDA or CPSC to
prove that these chemicals are too dangerous to have in the
everyday products we are bringing into our homes.
Senator Carper. Mr. Witt, what can we learn from outside of
our borders?
Mr. Witt. Thank you, Chairman. I think one thing that we
can learn is, when there are technical issues that come up,
especially in Europe, and that are cross-border, they tend to
focus resources much better than we do, a lot of the time. I
think that that is a lesson we definitely need to take on PFAS
here.
There was a PFAS working group within EPA on developing
technologies, and I think that that working group needs to be
reconstituted. I think it may still be going. I think that that
is the kind of innovation that we need, where, as opposed to
looking at this from 50 different points of view or even from
just the Federal level, there needs to be a collaborative
effort on this to say, here is where we are going to go, here
is the technologies we are going to invest it.
There are places, like at PVSC, where we are one of the
places doing pilot programs on PFAS treatment, so that we can
keep taking leachate from landfills and places like that, and
there is a safe and responsible way to dispose of it. I think
that is an important thing.
They say in Europe, they have one design for a power plant
and 300 kinds of cheeses, and in America, we have 300 designs
for nuclear power plants and only one kind of cheese. I think
we need to go to the one design for the PFAS and start really
focusing our efforts on getting a solution to this problem.
Senator Carper. Good. Thank you for that.
Mr. Fox?
Mr. Fox. Sure. I do not have a specific example, but I can
tell you something general, which I think is applicable here.
That is, in Europe, oftentimes, when they look at the
environmental problems, they look at the interdependence. You
can not just pull out one piece, because if you push on the
toothpaste tube at one end, it comes out the other end.
One of the things that we should use as a model is the fact
of the interdependence that I have tried to talk about here, as
we have leachate discharges that go to a POTW. It creates a
biosolid. You have water treatment systems that need to go
someplace. We need to figure out a way to resolve that as an
interdependent whole as opposed to each individual piece.
Senator Carper. Thank you.
I announced about 3 months ago that I was not going to run
for re-election, and almost every day since then, people have
said to me, how are you enjoying your retirement?
[Laughter.]
Senator Carper. They say, we are really going to miss you.
You have done a great job. I said to my wife the other day, I
said if I had known people were going to be this nice, I would
have quit a lot sooner.
[Laughter.]
Senator Carper. Not really. People have been very nice.
I have indicated that, there is a saying that they have in
track and field, you have probably heard it, run through the
tape, and I have every intention to spend every day, every
week, every month, between now and high noon, January 3d, 2025
dealing with some of the tough issues and actually making sure
that some of the legislation we have enacted is being
implemented. It is one thing to pass laws; it is another thing
to make sure that they are fully implemented.
The issue that we have discussed here today is thornier and
actually more difficult than most that we come in contact with.
I get good advice from a lot of different sources, but I
mentioned earlier the advice from one of our witnesses a couple
years ago from Wyoming who said in his confirmation hearing,
bipartisan solutions are lasting solutions. That really has
been something that I have taken to heart. I know Senator
Capito and other colleagues have, as well.
Another thing I learned a long, long time ago is when I am
trying to figure out what is the right thing to do is to put
myself in other people's shoes and say, how would I want to be
treated if I were in their shoes? That is probably a pretty
good rule to follow here.
There is something called the Golden Rule that, believe it
or not, is in every major religion of the world. I do not care
if you are Jewish; I do not care if you are Protestant or
Catholic, Buddhist, Hindu, Muslim, they all have the same, and
it is almost the same exact words: treat other people the way
you want to be treated. Love thy neighbor as thyself.
I think we will be able to overcome, hit paydirt, and find
out what is the right thing to do that will, because we
remember that advice.
In closing, I want to thank each of you for taking the time
to be here with us today and help us deal with these issues.
The issue of PFAS is one of critical importance, with impacts
reaching each and every one of us in our 50 States. These
chemicals are pervasive in commerce, as we have been reminded
today, having been shown to be useful, though, in many
situations, as we have heard today.
Yet, these forever chemicals are a pervasive threat in many
instances to our health, to our livelihoods, and we need to
make sure we are acting to protect our communities and the
people who live in them.
We have also heard today about some of the serious
challenges associated with regulating these chemicals while
ensuring that those responsible for PFAS contamination are held
accountable. It is important that we act carefully to prevent
unintended consequences, particularly for actors like
municipalities and water treatment plants, who, as referred to
repeatedly today, are concerned about legal costs for
contamination that someone else caused.
I look forward to continuing this conversation, frankly,
with some of you, especially our friends at CRS. We look
forward to continuing this conversation, working together
toward common sense solutions to address these pollutants.
We will be sending some followup questions for the record.
This is my favorite part of the hearing. For some final
housekeeping, I ask unanimous consent to submit for the record
a variety of materials that include letters from stakeholders
and other materials that relate to today's hearing. When I ask
unanimous consent and I am the only Senator here, nobody can
object.
[Laughter.]
Senator Carper. Without objection.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Carper. Senators will be allowed to submit
questions for the record through the close of business on April
3d. We will compile those questions, send them to our
witnesses, and ask our witnesses to reply by April 17th, if you
would.
With that, let me again thank our staffs on either side of
me. We are different parties, but we are a team. We are a good
team. Your testimony is going to make us a better team, I
think. It will make us better servants for the people that we
serve.
With that, anything else? I am going to go vote. Thank you
all. God bless. This hearing is adjourned.
[Whereupon, at 12:13 p.m., the hearing was adjourned.]
[all]