U.S. Senators from both parties agree the federal government should take action to prevent municipalities, water utilities, and water treatment plants from being held liable for the presence of per- and polyfluoroalkyl substances (PFAS) in drinking water.

At a Senate Environment and Public Works (EPW) Committee hearing on PFAS contamination held on March 20, 2024, the senators said the companies that made PFAS that have contaminated drinking water are the entities that should be held liable and pay for cleaning up and disposing of PFAS, and not “passive receiver” entities like drinking water and clean water systems and waste management utilities because PFAS chemicals traveled through their systems.

Further still, EPW Chairman Tom Carper (D-Del.) outlined four actions that need to be implemented to regulate and remediate PFAS. Those actions are:

• Determining the spread of PFAS contamination.

• Identifying the health threats PFAS chemicals can pose.

• Exploring the best methods to remove PFAS substances from U.S. waters and lands.

• Finding how to make the actual PFAS polluters pay while protecting innocent parties.

Carper was joined by EPW Ranking Member Shelley Moore Capito (R-W.Va.) in calling for “passive receiver protections” to ensure that original polluters pay for the cleanup of PFAS substances. The Environmental Protection Agency (EPA) plans to designate two PFAS substances as hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) before addressing those substances under any other federal environmental statute, she said.

Capito added, “By the EPA’s own admission, this CERCLA first approach does not allow the EPA to exempt innocent parties from liability for cleanup costs. If an entity meets the definition of a potentially responsible party, that entity is liable for all cleanup costs regardless of intent or exercise of due care. While I appreciate the EPA’s claim 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,” she said.

Capito stated that because the EPA plans to finalize its PFAS rule during 2024 under CERCLA, the rule will put water utilities in an untenable position. Therefore, “Congress must step in to address the overly broad sweep of CERCLA liability” and provide passive receivers—such as water systems, wastewater systems, and landfills—with relief from liability, she said.  The original polluters should be held financially responsible for cleaning up PFAS; such relief should be a “bright line” in a statute, thereby “making it very clear” who is responsible for the contamination and cleanup, she said.

However, Kate Bowers, a legislative attorney in the American law division of the Congressional Research Service who testified at the EPW hearing, said, “Only certain categories of parties with a connection to the contamination may be held liable.”

According to Bowers, those parties are often called “potentially responsible parties” and include current or past site owners or operators, arrangers, and transporters. CERCLA allows any person, including the EPA, states, local governments, tribes, and private parties, to sue a potentially responsible party to recover response costs that they've incurred.

Yet, while CERCLA allows the filing of lawsuits, several requirements must be met for a party to be held liable for cleanup costs under CERCLA, Bowers said. Those requirements include a release or threatened release of a hazardous substance into the environment, and there must also be a response action or clean-up and response costs at the site.

Further, CERCLA allows a party that has been required to pay response costs to assert a contribution claim to compel other potentially responsible parties to bear an equitable share of those costs, and parties that have resolved their CERCLA liability to the U.S. or to a state cannot then be held liable for contribution claims by other potentially responsible parties, according to Bowers.

Nonetheless, Bowers said that CERCLA provides several exemptions and defenses to liability for categories of parties that meet specific criteria. For example, CERCLA exempts 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 might not be a basis for liability,” Bowers said.

Bowers noted that while the EPA has stated it does not intend to pursue enforcement against certain entities such as farmers, water utilities, airports, or local fire departments, the EPA’s 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 potentially responsible parties. “If a potentially responsible party has not resolved its liability by settling with EPA or a state, it won’t receive protection from future contribution claims,” she said. However, by limiting the number of response actions EPA undertakes, the agency could limit the circumstances that “give rise to the response costs that are a necessary condition for CERCLA liability,” she said.

Click here to view the hearing.