The PFAS Action Act (H.R. 535) approved by the House Energy and Commerce Committee on November 20 would lead to the designation of all per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) – fulfilling a key Democratic objective but ignoring the warnings of AMWA and other water sector organizations that have argued such a move could put community water systems at risk of liability when they legally dispose of water treatment byproducts containing PFAS. Committee Republicans also opposed the broad CERCLA designation.
H.R. 535 would address the status of PFAS under CERCLA in multiple ways. First, one section of the bill would require EPA to designate PFOA and PFOS as hazardous substances within one year, while giving the agency up to five years to designate all PFAS as hazardous. But a later section would give EPA 180 days to list all PFAS as hazardous air pollutants under the Clean Air Act – which by law would automatically classify them as hazardous substances under CERCLA.
AMWA and other drinking water and wastewater organizations have spent the past several months telling Congress that any such hazardous substance designation for PFAS must be accompanied by a targeted liability exemption for water systems. In the case of drinking water systems that filter PFAS from their water supplies, a hazardous substance designation without a liability exemption could put these systems at risk after they dispose of water treatment byproducts at an appropriate landfill. Should that landfill ever be designated as a Superfund site because of PFAS contamination, the water system could be held liable as a potentially responsible party even if it followed all legal requirements when disposing of the byproducts.
AMWA wrote to the Energy and Commerce Committee on November 18 to reiterate this point, but Democrats still succeeded in passing the measure with the hazardous materials designation. For their part, committee Republicans were opposed to the designation in any case, so the committee debate avoided the issue of water system liability.
The next steps in the PFAS debate are expected to play out in the context of a must-pass defense policy bill. Over the summer each chamber approved its own version of a defense bill with differing PFAS provisions – with the House bill including a CERCLA designation for all PFAS, and the Senate’s including no such designation. To date House Democrats and Senate Republicans have remained adamant that their preferred approach to PFAS and CERCLA must be reflected in the final defense bill, which has stalemated negotiations and relegated the water sector’s request for a targeted exemption to a secondary concern.