EPA’s Superfund Rule Needs a Bipartisan Check on PFAS Litigation

B. Keith Pugh of the American Public Works Association, Dale Nellor of the National Water Resources Association, and Frank Franciosi of the US Composting Council ask the US Senate to improve the EPA's proposed PFAS Superfund rule.

Checks and balances are an important part of our country's architecture. One government branch's clear-eyed check of another branch often provides a way to refine and improve public policy.

We now have an opportunity to improve a flawed, pending Environmental Protection Agency policy. Action from the US Senate in the coming weeks could provide a balanced, bipartisan check that's supported by a broad coalition of organizations responsible for safeguarding public health and the environment.

This policy improvement would protect entities that have obeyed the rules. They shouldn't become victims of litigation that would shift the long-held, just polluter pays principle to an unjust system best described as a community pays model.

Under the new proposed EPA rule, specific PFAS chemicals, often called forever chemicals, would be designated as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, also known as Superfund.

Adding new substances to the EPA's CERCLA list is a bold move, and we agree that cleanup and management of PFAS will require bold action. However, this proposed designation will put thousands of law-and-rule-abiding entities in a group where they don't belong—where they will be treated as polluters that must legally defend themselves and pay for pollution they didn't cause.

The EPA admits it lacks sufficient authority to shield these blameless parties from third-party contribution claims brought by the manufacturers of PFAS and others that actually are responsible for environmental contamination. Those accused include water treatment agencies, biosolids management organizations, municipal solid waste authorities, and composting facilities.

To date, the EPA has only offered a partial solution through enforcement discretion, which provides temporary protection. However, this partial solution only delays future contribution litigation.

Those polluters will see the new EPA CERCLA policy as an opportunity to share the cost of Superfund cleanup with the public service entities which, in fact, provide the infrastructure communities need to reduce exposure to PFAS in the environment.

The cost of this inevitable litigation will hit cash-strapped local governments and the organizations that provide essential services to their communities, including drinking and raw water systems, wastewater systems, solid waste landfills, and composting facilities—none of which manufacture or use PFAS, but have been addressing secondhand contamination.

They are, instead, passive receivers of materials that contain PFAS—compounds that are ubiquitous in everyday products and, therefore, our environment.

To cover the cost of litigation, citizens will end up paying higher utility bills and local taxes at a time when inflation is already choking the cash flow of so many Americans.

In the blink of an eye, we could become a nation where blameless communities shoulder more financial burden than the original polluters and are placed at greater risk of insolvency.

Passive receivers of PFAS, and the communities those entities serve, should not be held liable for a problem they didn't create. That's why Senate Environment and Public Works Chairman Tom Carper (D-Del.) and ranking member Sen. Shelley Moore Capito (R-W.Va.) are negotiating legislation that we hope will protect essential water, wastewater, and solid waste systems from the unintended consequence of the proposed EPA designation.

The two senators’ collaboration on this issue is critical, and is supported by a comprehensive coalition of passive receivers of PFAS that are dedicated to their communities, including public works organizations, municipalities, composting and biosolid companies, mayors, and water and solid waste facilities.

We hope Sens. Carper and Capito's bill will ultimately include elements of Sen. Cynthia Lummis’ suite of legislation, designed to protect the municipalities and companies from the devastating liability expense that the EPA's proposed CERCLA rule could bring.

Most of all, we hope Senate Democrats will be inspired by Sen. Carper's bipartisan leadership in addressing this issue and join their Republican colleagues to bring a balanced check to an EPA rule—one that is too blunt of an instrument and will bring financially painful consequences for their constituents.

PFAS cleanup is a serious issue that will continue to require partnerships across the aisle and across interest groups. The Senate has an opportunity to show bipartisan leadership and put this long-term challenge on more fair, balanced footing now—a step that will make a difference in responsible PFAS cleanup going forward.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

B. Keith Pugh is president of the American Public Works Association.

Dale Nellor is executive vice president of the National Water Resources Association.

Frank Franciosi is executive director of the US Composting Council.

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