WASHINGTON, D.C. – U.S. Senator Cynthia Lummis (R-WY) introduced five bills to ensure industries and municipalities are not subject to liability claims if the Environmental Protection Agency (EPA) designates per- and polyfluoroalkyl substances (PFAS) compounds as hazardous substances. The covered entities in these bills either do not contribute to PFAS contamination or are required to use PFAS-containing substances through regulations. Lummis introduced this legislation in response to an August 2022 proposed EPA rule to designate two PFAS compounds as a hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund. This would subject any entity with PFAS contamination to potential CERCLA liability from the EPA and third parties.
Should this rule be finalized, entities such as water treatment plants, landfills, farms and ranches would be held liable for PFAS contamination they are not responsible for and entities such as airports, fuel depots and refineries that are required to test use fire suppression foam that contain PFAS would be at risk for litigation.
“There is no doubt we need to consider the environmental impacts of PFAS chemicals but suing entities who did not contribute to the contamination is overkill, especially considering some of these entities, such as ranches and water facilities, are just downstream receivers,” said Senator Lummis. “This is another instance of the Environmental Protection Agency overstepping its authority and putting onerous regulations on businesses in Wyoming. That is why I am introducing this suite of legislation to protect entities from frivolous lawsuits.”
Senators Roger Wicker (R-MS), John Boozman (R-AR), Kevin Cramer (R-ND), Pete Ricketts (R-NE), Markwayne Mullin (R-OK), Dan Sullivan (R-AK) and Lindsay Graham (R-SC) cosponsored this legislation.
“We need to protect farmers, ranchers and others not directly responsible for PFAS contamination from being potentially held liable by the EPA or subject to sweeping private legal action that could wreak havoc on their ability to operate. This looming threat will not only harm multiple industries and likely raise costs for consumers, but also increase uncertainty when we can least afford it. I’m pleased to join Sen. Lummis and our colleagues on this legislation to prevent these adverse outcomes,” Senator Boozman said.
“The EPA’s decision to designate PFAS as hazardous substances under CERCLA could have significant consequences for our farmers, waste and water systems, and airports in North Dakota by exposing them to unfounded litigation risk,” said Senator Cramer. “Our legislation protects them from being roped into endless lawsuits for pollution they did not create or which resulted from simply following applicable federal and state regulations.”
“PFAS contamination deserves thoughtful solutions, not broad mandates that punish businesses and public works agencies that did nothing to contribute to the contamination, such as landfills and water treatment plants,” said Senator Mullin. “The EPA’s recent decision to designate certain PFAS chemicals as hazardous substances could open waste and recycling entities to unnecessary lawsuits and ultimately harm consumers. I’m proud to support Senator Lummis’ bills to provide commonsense exemptions to entities not responsible for PFAS pollution.”
“Farmers do not produce PFAS chemicals, nor do we intentionally use them on our farms, so we appreciate Senator Lummis’ bill to ensure farmers are not punished for a challenge we didn’t create,” said American Farm Bureau President Zippy Duvall. “This issue is facing all of society and the wrong approach would threaten rural livelihoods and cause additional supply chain disruptions at a time when many families across the country are already struggling with higher food prices.”
“The US Composting Council is in full support of Senator Lummis’s efforts to carve out a legislative solution by exempting passive receivers from PFAS CERCLA liability. America’s compost producers are stewards of the environment that provide essential services to both the private and public sectors. Composting and compost application play an important role in this nations resource management strategy. This bill keeps the promise that the polluter shall pay model intact,” said Frank Franciosi, Executive Director of the US Composting Council.
“As the EPA continues to pursue plans to designate some PFAS as hazardous materials, we appreciate the efforts of Senators Lummis, Cramer, and Ricketts to provide U.S. airports with appropriate liability protection due to the longstanding federal requirements that airports use firefighting foam containing PFAS,” said Kevin M. Burke, President and CEO of the Airports Council International – North America.
“This legislation helps clarify that absent gross negligence or willful misconduct public works departments should not be held liable for something they did not create. To not enact this legislation risks exposing innocent parties, who followed best practices, to consuming and expensive legal challenges. We must instead focus on holding accountable those who made and profited from PFAS and other “forever chemicals.” On behalf of public works, I urge support for this legislation,” said Keith Pugh, President of the American Public Works Association.
“As we work to address PFAS in the environment, it is vital that essential public services and the communities they serve are not unfairly burdened,” said Solid Waste Association of North America Interim Executive Director and CEO Richard Yep. “SWANA supports legislative action to ensure the polluter pays and not ratepayers and the public at-large.”
“NWRA has consistently sought relief from CERCLA liability for PFAS at landfills,” said National Waste and Recycling Association President and CEO Darrell Smith. “We believe a narrow exemption for the municipal solid waste industry serves to keep CERLCA liability on the industries that created the pollution. NWRA appreciates these Senators taking a balanced approach to ensure that landfills will remain the safest method to manage solid waste.”
“Providing airports with CERCLA liability protection for complying with long-standing federal regulations and requirements is critical in speeding the transition to fluorine-free firefighting foams,” American Association of Airport Executives President and CEO Todd Hauptli said. “We are grateful to Senator Lummis and other bill sponsors for their leadership and urge Congress to adopt this important legislation as soon as possible.”
“The impacts PFAS CERCLA hazardous substance designations could have on the ability of the water sector to deliver affordable water services cannot be overstated,” said Adam Krantz, CEO of the National Association of Clean Water Agencies (NACWA). “We need a true ‘polluter pays’ model that holds accountable the parties responsible for PFAS contamination. But given the ubiquity of PFAS after decades of use – and their ongoing release into our waterways from industrial sites, commercial uses, and household products – broad CERCLA designations would instead threaten the financial stability of water utilities all across the U.S. NACWA thanks Senator Lummis for her leadership in shielding communities from these misplaced burdens and appropriately refocusing liability on PFAS producers. We look forward to continuing to support efforts that prioritize source control and ensure polluters pay.”
“We’re grateful to Senator Lummis for her support of water professionals and water utilities,” said Walt Marlowe, Executive Director of the Water Environment Federation. “A liability exemption will allow utilities to continue protecting public health and not place a financial burden for PFAS cleanup on ratepayers or taxpayers. The economic burden should be borne by PFAS producers, not the public.”
“Water utilities and ratepayers should not be liable for sites contaminated with PFAS. Polluters manufacturing, using, and profiting from these chemicals should be held responsible for the contamination that they created. We appreciate Sen. Lummis’ commitment to CERCLA’s ‘Polluter Pays’ principle and look forward to working with Congress to pass this important legislation,” said David LaFrance, CEO of American Water Works Association.
“On behalf of the 30,000 rural and small community members of the National Rural Water Association (NRWA), we enthusiastically support the enactment of the “Water Systems PFAS Liability Protection Act,” said NRWA CEO Matthew Holmes. “The vast majority of public water systems impacted by PFAS are small and face more challenges complying with federal regulations and operating complex water treatment systems. NRWA shares the goal of eliminating all concentrations of PFAS from the public’s drinking water and environment. However, regulation, civil enforcement, and liability under the Superfund Law (CERCLA) are not the appropriate federal remedies for addressing this problem for local governments. Small and rural communities are not responsible for introducing PFAS into the environment or the public’s drinking water. NRWA applauds Senator Lummis’s leadership and the introduction of this critically important piece of legislation, which will hold those entities most responsible for PFAS contamination accountable.”
“CERCLA is intended to hold polluters accountable for the damage they cause to our environment. But in the case of PFAS, the law could allow those responsible for producing the chemicals to pass off cleanup liability to community water systems that must remove the contaminants from their source waters. AMWA supports the “Water Systems PFAS Liability Protection Act” because it would close this loophole and ensure that polluters — and not innocent water system ratepayers — get the bill for CERCLA cleanups related to PFAS. We urge all senators to support this ‘polluter pays’ legislation,” said Tom Dobbins, CEO of the Association of Metropolitan Water Agencies.
“WM strongly supports regulatory efforts to reduce exposure to PFAS in the environment but is concerned that regulation under the Superfund law runs counter to the “polluter pays” intent of the law, instead forcing essential public services and the communities we serve to bear significant costs and liabilities. We commend Senator Lummis for introducing this important bill and look forward to continuing to partner with Congress and the Biden Administration on actions to safeguard public health and the environment,” said John Morris, Executive Vice President and Chief Operating Officer at Waste Management.
“ILTA thanks Senator Lummis for her leadership and understanding that the existing CERCLA statute is a blunt instrument that fails to provide common sense accommodations for industries that were required, for decades, by their regulators to use PFAS based firefighting foams. ILTA believes the Lummis bill lays out the foundation for the conversation that all stakeholders and policy makers must have to ensure an equitable outcome that advances our shared goal of environmental protection,” said Dr. Kathryn Clay, President ITLA.
“Senator Lummis’s bill is crucial to ensure that the polluters, not water and wastewater customers, are paying to clean up these ‘forever chemicals’,” said Robert F. Powelson, President and CEO of the National Association of Water Companies (NAWC). “The Water Systems PFAS Liability Protection Act underscores that the producers, manufacturers and parties that used PFAS chemicals in their operations are all clearly responsible parties while protecting families from being exposed to liability through their water and wastewater bills. Under Senator Lummis’s leadership, we look forward to working with members of Congress to secure passage of the bill.”
Per- and polyfluoroalkyl substances (PFAS) are widely used, long lasting chemicals. Components of which break down very slowly over time. PFAS chemicals are used in some household materials, but more notably in fire suppression foams.
Because of their widespread use, PFAS can be found in the blood of people and animals and are present in low levels in a variety of food products and in the environment.
Each of the five pieces of legislation will address a certain industry targeted by superfund liability.