Warnings of a “wave of lawsuits” as PFAS exemption debated

By Shannon Kelleher

Representatives of US water and waste systems told US lawmakers this week that hundreds of such operations across the nation could face unintended and overwhelming liabilities unless they are exempted from a proposal that would designate two types of per- and polyfluoroalkyl substances (PFAS) as hazardous substances.

The rule proposed by the Environmental Protection Agency (EPA) sets up “multiple avenues to drag innocent parties into extremely costly and complex litigation,” Michael Witt, a lawyer speaking on behalf of a coalition of water groups, told members of the US Senate Committee on Environment and Public Works in a hearing Wednesday.

Witt was one of multiple witnesses to address the committee on the hotly contested issue of how the government should address widespread PFAS environmental contamination. The EPA said in 2022 that it was preparing to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) because they present “a substantial danger to human health or welfare and the environment.”

Such a designation allows the government to order responsible parties to clean up the environmental contamination and bear the costs of mitigation. The “polluter pays’ model is a core principle of CERCLA.

The debate now underway is about whether to provide an exemption from liability for “passive receivers” of PFAS – entities that don’t make or use PFAS but wind up with the chemicals in their water, land and waste. The EPA has said it won’t assign liability to passive receivers, but Witt and others speaking at the hearing said there is still concern that such entities could become embroiled in lawsuits over chemicals they never used or produced.