WASHINGTON – With more than 2,800 contaminated sites across the U.S., pollution from the toxic “forever chemicals” known as PFAS has created an urgent national health crisis.
But rather than hold the polluting entities responsible, now Congress is considering new loopholes, which will let some of them off the hook for PFAS contamination they may have contributed to.
Sens. Cynthia Lummis (R-Wyo.) and John Boozman (R-Ark.) have introduced five bills that would offer exemptions to water utilities, farmers, airports, landfills and fire training centers. But far more than even these significant loopholes is at stake. Their bill would open the door to even more loopholes for companies that have used PFAS or other hazardous substances, making it much harder to clean up contaminated communities.
PFAS are linked to serious health harms, including cancer, reproductive and development harm, and even reduced effectiveness of vaccines.
Last year, the Environmental Protection Agency took steps to designate two of the most notorious PFAS – PFOA and PFOS – hazardous substances under the federal Superfund law, also known as the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA. That designation would jump-start the cleanup process and give the EPA important new tools to hold polluters accountable.
But instead of supporting this effort, the Lummis-Boozman bill would give PFAS polluters a break.
Here’s why a PFAS polluters holiday is a bad idea.
It’s a slippery slope. The Lummis-Boozman bills apply to just five sympathetic sectors. But those aren’t the only ones clamoring for an escape from liability.
For example, when Congress voted on the PFAS Action Act in 2021, Republicans offered amendments exempting medical devices, semiconductors, lithium batteries, solar panels, wind turbines, pipeline safety equipment and chlorine production from Superfund. Now, if the Senate gives loopholes to sectors like water utilities and farmers, these other polluters will only be more emboldened to ask again for their own loopholes.
It’s totally unnecessary. The EPA already has leeway over which polluters it holds responsible for cleanup. The agency has successfully used this discretion for over 40 years to ensure polluters pay the lion’s share of the cleanup under Superfund.
In a listening session in March, the EPA had already committed to focusing PFAS cleanup actions on “manufacturers, federal facilities, and other parties whose actions contribute to the release of significant amounts of PFAS.” It also said it does not plan to pursue “community water utilities and publicly owned treatment works, municipal solid waste landfills, farms, airports, or fire departments.”
And the Superfund law includes other safeguards designed to protect innocent parties.
The EPA can protect companies and governments from lawsuits from other polluters. The agency can decide whom to pursue in a Superfund cleanup. Some polluters, called “potentially responsible parties,” may decide to sue to involve other parties and try to make them pay for part of the cleanup. But the EPA already has tools to protect water utilities, farms and others from these kinds of third-party actions.
In the March listening session, the EPA said it will quickly settle with parties like water utilities and farmers, because that “would provide protections against litigation by other liable parties.” When a party settles with the EPA, it creates a "liability shield" preventing lawsuits from other parties. These settlements would protect innocent parties. But settling with the EPA requires full cooperation, so the settlements would also ensure the innocent parties cooperate with the EPA to identify who is responsible.
For example, utilities have valuable information about upstream users – information that can help the EPA identify and pursue the responsible polluters. But if those responsible polluters are totally exempt from liability, the utilities may not have an incentive to work with EPA to identify them.
There’s nothing new here. Water utilities already handle Superfund-designated hazardous substances every day without facing significant liability. Superfund identifies more than 800 hazardous substances, many of which are widely used and routinely end up in sources of drinking water and wastewater.
In fact, of the 90 contaminants whose monitoring and treatment are required by the Safe Drinking Water Act, 66 are CERCLA hazardous substances. All toxic pollutants and hazardous substances under the Clean Water Act are also hazardous substances under Superfund. Thus, many of the pollutants that wastewater treatment facilities must address are hazardous substances subject to CERCLA. Many hazardous substances are already in landfills, which is why landfills regularly monitor and treat liquids that leach from them.
Superfund already motivates facilities to act responsibly. A company or utility isn’t liable according to Superfund just for using a substance designated hazardous. It’s liable – potentially – only after the hazardous substance is released into the land, air or water, threatening human health and the environment.
That threat of liability creates an important incentive for facilities that use PFAS or receive PFAS waste to handle the chemicals responsibly and limit or eliminate their discharges. But sectors will no longer have that incentive if they’re exempted entirely.
Water utilities already have tools to protect themselves from liability. Water utilities, airports, landfills and other similar entities can already insulate themselves from liability. Superfund liability doesn’t apply to releases that are “federally permitted” – any releases that comply with the facility’s permits generally will be shielded from liability.
Entities like utilities, airports and landfills should work with regulators to update their discharge permits to include PFAS so they’ll have that liability protection.
Wastewater utilities can also impose pretreatment standards on upstream industrial users so that they receive less PFAS in the first place. Utilities can even reject wastewater from industrial utilities if they suspect it is contaminated with PFAS.
Sewage sludge is already largely exempt from Superfund. The presence of PFAS alone is extremely unlikely to lead a farm to being added to the list of EPA’s priority sites, called the National Priorities List, or NPL. The only farms currently on the list were also dumping sites for hazardous waste – they became Superfund sites because of the waste they received, not because of agricultural activities.
Some people have raised concerns about liability from the spread of sewage sludge on agricultural lands. But this scenario is extremely unlikely. First, Superfund contains an exemption for “the normal application of fertilizer,” which would likely apply to the use of biosolids.
Second, there is no historical basis for bringing claims against farms for the use of sewage sludge. A 2018 EPA inspector general report identified more than 350 contaminants identified in biosolids applied to lands. Among them, 61 were identified as “acutely hazardous, hazardous, or priority pollutants” in other programs, including CERCLA. But the presence of hazardous substances alone has rarely triggered Superfund liability for farms that have applied sludge.
Most sites will not become priority Superfund sites. When the EPA finalizes its hazardous substance designation for PFOA and PFOS, it will not immediately create new sites on the NPL. The NPL listing process is long and considers multiple factors, resulting in an average of only 10 new NPL sites being added each year. Most of the sites where PFAS are present will never become NPL sites. Many sites will likely be addressed through state programs or under other environmental laws.
We must protect Superfund to ensure contaminated communities get the cleanup they need and deserve. Designating PFOA and PFOS will help kick-start the cleanup process in hundreds of communities that have been devastated by PFAS. It will also help the EPA hold PFAS polluters accountable. Harms from PFAS are especially concerning for communities with environmental justice concerns, which are often disproportionately exposed to chemical contaminants. Creating new liability exemptions for specific chemicals is unprecedented under Superfund and it will impede the EPA from finally bringing relief to communities that have been contaminated for decades.
More than PFOA and PFOS are at stake. Since passage of the Superfund law, Congress has never created the kind of exemptions proposed by Lummis and Boozman. Their proposal would be an unprecedented assault on one of our benchmark environmental laws and open the door to similar loopholes for everything from PCBs to dioxin.
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The Environmental Working Group is a nonprofit, non-partisan organization that empowers people to live healthier lives in a healthier environment. Through research, advocacy and unique education tools, EWG drives consumer choice and civic action.
