Environment
Lawmakers Appear Open to Contractor Carveouts for Superfund PFAS Liability
Senate Environment and Public Works Committee Chair Shelly Moore Capito (R-W.Va.) suggested a mechanism for PFAS Superfund liability carveouts for contractors similar to those provided for brownfield cleanups in the early 2000s.
Lawmakers at a Nov. 19 congressional hearing signaled interest in addressing what construction and engineering firms as well as water and wastewater utilities see as a major risk—potential liability under the nation’s Superfund law related to the removal and remediation of the forever chemicals known as PFAS.
The U.S. Environmental Protection Agency in April 2024 designated two types of PFAS chemicals—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—as hazardous under the Superfund law requiring polluters to pay for their removal and cleanup.
Construction and water groups have long said that designating the chemicals as hazardous under Superfund casts too wide a net for responsible polluters, and that firms and utilities with sites where PFAS is later found could be on the hook for remediation costs and lawsuits.
EPA issued a memo also in 2024 stating it would use its “discretion” in assessing liability, but construction groups say that vague agency assurances are not sufficient.
Leah Pilconis, general counsel for the Associated General Contractors of America, told lawmakers that although contractors do not manufacture PFAS, they frequently work on sites where the chemicals could be present.
“EPA’s 'direct-to-Superfund' designation of PFOA and PFOS as hazardous substances under [federal law] exposes contractors to significant legal and financial risk without providing a clear compliance path for the construction industry.”
Because EPA has not issued clear and specific instructions on soil concentration levels for PFAS chemicals or proper disposal of soil with the chemicals, many project owners are choosing not to test for their presence on jobsites. “As a result, contractors performing excavation, trenching and dewatering activities are stuck with the risk of unknowingly handling PFAS and face cleanup liability or private-party litigation for contamination they did not create, could not reasonably detect and have received no federal direction on how to manage,” Pilconis said.
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"Liability issues must be addressed” both by EPA, with more clear guidance, and by lawmakers on Capitol Hill, Senate Environment and Public Works Committee Chair Shelley Moore Capito (R-W.Va.) said in her committee hearing opening statement. "Congress must come together to enact a bipartisan solution to minimize future PFAS contamination, develop a clear path to destroy PFAS and protect passive receivers.”
Ranking member Sheldon Whitehouse (D-R.I.) appeared to agree, noting, “If there is a role for Congress to ensure that the right people pay to fix this problem, then I look forward to working together to find a solution.” He added that EPA also needs to also adequately fund the state revolving fund loan programs that pay for cleanups.
Capito said there is precedent for lawmakers and EPA to step in when Superfund laws have taken too broad a sweep on requirements. When liability concerns slowed cleanups of brownfields sites, “EPA used administrative settlements to protect innocent landowners and local governments. That same authority exists today,” she said.
Kate Bowers, supervisory attorney for the Congressional Research Service, said that requiring waivers and entering settlements with principal responsible parties for PFAS contamination could be options to limit liability for non-responsible parties going forward.
