Lawmakers Appear Open to Contractor Carveouts for Superfund PFAS Liability

Lawmakers at a Nov. 19 congressional listening to signaled curiosity in addressing what building and engineering corporations in addition to water and wastewater utilities see as a serious danger—potential legal responsibility beneath the nation’s Superfund legislation associated to the removing and remediation of the eternally chemical substances referred to as PFAS. 

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

Building and water teams have lengthy mentioned that designating the chemical substances as hazardous beneath Superfund casts too large a internet for accountable polluters, and that corporations and utilities with websites the place PFAS is later discovered might be on the hook for remediation prices and lawsuits. 

EPA issued a memo additionally in 2024 stating it might use its “discretion” in assessing legal responsibility, however building teams say that obscure company assurances usually are not adequate. 

Leah Pilconis, normal counsel for the Related Common Contractors of America, advised lawmakers that though contractors don’t manufacture PFAS, they continuously work on websites the place the chemical substances might be current. 

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

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

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

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

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

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