A broad array of organizations from sewage-treatment plants to hospital districts would be threatened with Superfund liability if Congress passes legislation requiring the Environmental Protection Agency to declare an entire family of chemicals known as PFAS as hazardous pollutants.
The U.S. House of Representatives passed a defense appropriations bill on July 12 that includes an amendment requiring the EPA to revise its list of toxic pollutants to include polyfluoroalkyl substances, or PFAS. The chemicals were found on products like non-stick cookware and waterproof clothing, as well as firefighting foam often used on military bases.
While the amendment is unlikely to be included in any bill approved by the Republican-controlled Senate, if passed it would instantly create new litigation risks for anyone who stored, handled or disposed of PFAS compounds, which can persist for decades in groundwater and human tissue.
Under the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, cleanup costs can be imposed not just on the owners of contaminated property but whoever arranged to bring the hazardous chemicals there.
"You’ve just expanded the universe of parties that can be brought into the web of Superfund liability at CERCLA sites," said Steven M. Jawetz, a principal with Beveridge & Diamond in Washington who represents clients in environmental matters.
The impact could include billions of dollars in unexpected liability for businesses and public agencies. A coalition of municipal water and sewage-treatment agencies including the National Association of Clean Water Agencies urged members of Congress to vote against the measure, saying it would “force local communities to shoulder cleanup costs for which they have no responsibility.”
A drinking water system that disposed of filters containing PFAS at a landfill would be liable, NACWA said, as would sewage plants that discharged treated water containing the molecules or sold it to farmers to spread on their fields as fertilizer.
“The cost of cleanup liability incurred by water and wastewater systems would be passed on to millions of local customers across the country,” the public water agencies said in their July 10 letter.
The EPA has only rarely declared an entire class of chemicals hazardous, most notably PCBs. Whether there is adequate scientific research that links PFAS to health problems has been debated, a science panel that DuPont funded as part of an agreement with plaintiff lawyers found “probable links” to six diseases including ulcerative colitis and kidney cancer after studying epidemiological evidence on 30,000 people exposed to the compounds. DuPont later paid $671 million to settle 3,500 lawsuits by people living near a factory it operated in West Virginia.
Environmentalists and plaintiff lawyers have raised alarms about the chemicals because they are ubiquitous in water and soil. Legislators in Congress and the states have responded by promoting laws to control their use and declare them hazardous pollutants.
State attorneys general in New Jersey and New Hampshire have hired private lawyers on contingency fees to file lawsuits over PFAS pollution and other AGs are considering doing the same.
The bill that passed in Congress last week represents the most aggressive attempt to effectively outlaw PFAS by attaching such crippling liability to the chemicals that no one would consider using them. But it would also bypass the normal regulatory process, under which the EPA studies the scientific evidence before recommending a chemical be placed on the list of hazardous pollutants, after which it is submitted for public notice and comment and finally adopted as a formal rule.
And unlike a regulatory rule, which can be challenged as being arbitrary and capricious under federal law, an act of Congress is extremely difficult to overturn except if it is a clear violation of the Constitution.
“If the Senate were to adopt that provision and the President were to sign it, it would be an unprecedented step of Congress saying we’re going to declare all PFAS compounds hazardous whether there is science behind it or not,” Jawetz said. “And the language doesn’t allow the EPA to reintroduce science back into the listing process.”
Superfund designation creates “concentric circles of liability,” Jawetz continued. For example, a hospital might be liable for disposing of gowns, masks, catheters and anything else containing PFAS, whether or not it fits the normal definition of hazardous medical waste.
If PFAS were found leaching into groundwater from the landfill where the hospital waste was disposed, Superfund liability would reach back to whoever arranged for those products to be brought there.