Landfills and wastewater utilities are concerned that designating PFAS chemicals as hazardous substances could have unintended consequences including legal liability for them.

The U.S. Senate Committee on Environment and Public Works discussed Wednesday how the designation of two types of PFAS chemicals—PFOA and PFOS—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act could impact utilities and municipalities. These are among the most utilized PFAS chemicals, though there are thousands of types of PFAS.

The Senate is considering passing legislation to help shield utilities from liability. Sen. Jeff Merkley, a Democrat from Oregon, emphasized that this would not absolve water and wastewater utilities from testing for those chemicals.

Ranking Minority Member Sen. Shelley Capito, a Republican from West Virginia, discussed what she described as passive receivers such as wastewater utilities. While they may not have been the initial source of the PFAS contamination, the PFAS chemicals can end up in wastewater systems and result in contamination downstream if not properly removed. 

Capito expressed concern that these passive receivers could end up footing the entire bill for PFAS contamination and could face litigation because of it.

This comes after the U.S. Environmental Protection Agency began the process to designate some PFAS chemicals as hazardous substances. There are two ongoing rulemakings before the EPA focused on PFAS. In addition to designating PFOA and PFOS as hazardous substances, the EPA has proposed limits for six PFAS substances in drinking water.

PFAS dangers

Committee Chairman Tom Carper, a Democrat from Delaware, told stories about how PFAS chemicals have been used in the past to save lives. He said 9,000 PFAS chemicals have been manufactured and used worldwide in various applications including creating lighter weight batteries for electric vehicles and increasing the efficiency of servers that keep people connected to the internet.

“Frankly, PFAS chemicals have made, in many instances, life easier. But this has come at a significant cost and that is the cruel irony of these chemicals,” he said. “And the very substances that can save lives, as I’ve mentioned earlier, and improve the quality of our lives may also put lives at risk.”

Carper said one reason that PFAS chemicals are so effective is that they don’t break down easily, but that can lead them to accumulate in plants, animals and humans.

“A number of these forever chemicals have been found to be toxic, causing liver damage, fertility problems, and even cancer,” he said.

That is why the EPA is considering more regulations for some of the common PFAS chemicals.

“I salute our utilities who are bearing the brunt of this contamination and doing everything they can to remediate it while providing safe and reliable drinking water, wastewater and solid waste services,” Carper said.

The cost of cleaning up PFAS is not cheap. He cited numbers from a Minnesota Pollution Control Agency’s that found that while PFAS chemicals can be bought for $50-$1,000 per pound, it takes $2.7 million to $18 million to remove and destroy each pound of PFAS from a municipal wastewater facility. 

He said that with the hazardous waste designation on the horizon, the utilities are “understandably worried” about the legal costs they may face for contamination that someone else may have caused.

Cost to ratepayers

Should these utilities face litigation, Michael Witt, general counsel for the Passaic Valley Sewerage Commission, said it would increase rates for customers.

Meanwhile, attorney Robert Fox who specializes in CERCLA spoke on behalf of the Solid Waste Association of North America, which is asking for a narrow exemption from CERCLA liability because landfills are passive receivers of PFAS chemicals.

SWANA’s director of public policy, Kristyn Oldendorf, also attended the hearing but did not speak. 

“This is an important issue as we need to ensure that landfills can continue to provide solutions and not be penalized,” Oldendorf said in a statement following the hearing.

Scott Faber with the Environmental Working Group argued that there are already a variety of substances that passive receivers must address.

Faber further highlighted an EPA letter that states it does not intend to pursue entities such as farmers, water utilities, airports or local fire departments. He further argued that there are other costs that aren’t borne by utilities, such as the various cancers associated with PFAS consumption.

“The single most effective way that we can reduce the amount of PFAS that’s in our blood is finalizing this drinking water standard and getting utilities to work taking it out of our water,” Faber said.

But he said another important step to protect people from PFAS would be preventing companies from using PFAS in unnecessary ways such as in carpets, clothing, cosmetics and food packaging.

NMED secretary weighs in

James Kenney, the New Mexico Environment Department cabinet secretary, was among the people who testified before the committee. New Mexico has been a leader in advocating for stricter regulation of the thousands of PFAS substances.

Kenney has advocated in the past for using a law known as the Resource Conservation and Recovery Act, or RCRA, to regulate PFAS. During the hearing, he described RCRA as the nation’s hazardous waste plan. 

Kenney said that RCRA is something that states can currently use to address PFAS contamination. 

“This is because the Congress had the insight to give the U.S. EPA and states broad authority under RCRA,” he said.

He said that it makes sense to address PFAS under RCRA prior to implementing CERCLA requirements because “RCRA is largely implemented by the states. In contrast, CERCLA is primarily implemented by multiple federal agencies with less involvement from EPA and states.”

Kenney said that under CERCLA the U.S. Department of Defense would be allowed to police itself.

New Mexico has gone through legal battles in an attempt to get PFAS contamination at military bases cleaned up. Fire suppression exercises at military bases using foam that contains PFAS has led to groundwater contamination at many sites across the country, including at Holloman and Cannon air force bases in New Mexico.

Kenney said that on his fifth day as cabinet secretary the department “New Mexico was slapped with a lawsuit to undermine RCRA authority for the cleanup of PFAS by the United States. We’re now in the fifth year of that lawsuit.”

Kenney offered two suggestions to the committee. The first was that Congress take immediate action to list PFAS as hazardous waste under RCRA. His second suggestion was that Congress should modify CERCLA and the Defense Environmental Restoration Program so that the EPA is the only agency in charge of implementing the regulations.

But the military is not the only culprit when it comes to PFAS contamination.

New Mexico officials are still looking into the source of PFAS contamination impacting a community in Santa Fe County. While the military is one possible source, another is a wastewater treatment plant.

Kenney later emphasized the need to invest in education for utility operators. 

He also highlighted work that the national labs are doing to solve the problem of PFAS contamination and said the government should prioritize those efforts.