Examining the Impact of EPA’s CERCLA Designation for Two PFAS Chemistries and Potential Policy Responses to Superfund Liability Concerns

Environmental Permitting and Water InfrastructureHouse Energy and Commerce Subcommittee on Environment · 2025-12-18 · 119th Congress
The House Energy and Commerce Subcommittee on Environment held this hearing to examine how EPA's 2024 decision designating PFOA and PFOS as hazardous substances under CERCLA (the Superfund law) affects "passive receivers" — water utilities, property owners, and other parties that did not manufacture or use PFAS but may have received or discharged them — and whether Congress should create new liability protections. Begins at 0:11:33
Transcript
Highlights

Title

Passive receiver liability under CERCLA for PFOA and PFOS

Purpose

The House Energy and Commerce Subcommittee on Environment held this hearing to examine how EPA's 2024 decision designating PFOA and PFOS as hazardous substances under CERCLA (the Superfund law) affects "passive receivers" — water utilities, property owners, and other parties that did not manufacture or use PFAS but may have received or discharged them — and whether Congress should create new liability protections. Witnesses testified on CERCLA's strict, joint-and-several, retroactive liability structure, its impact on real estate redevelopment and utility rates, and community perspectives on PFAS contamination and accountability. Begins at0:11:33

Who spoke

Rep. Gary Palmer (R-AL), Subcommittee Chair0:11:33: Opened by explaining CERCLA's strict joint-and-several liability and framed the hearing around whether existing exemptions adequately protect passive receivers0:13:15; later questioned witnesses on affordability impacts and BFP defenses1:00:111:04:32.

Rep. Paul Tonko (D-NY), Ranking Member0:16:24: Described widespread PFAS exposure and health harms, noted contamination in his district (Hoosick Falls)0:16:53, and said he sees "very little evidence" a CERCLA exemption is needed while the Trump EPA has already weakened other PFAS protections0:19:570:18:38; questioned Donovan on Gen X toxicity0:55:59 and Mehan on alternative statutory tools1:01:13.

Rep. Brett Guthrie (R-KY), Full Committee Chair0:21:12: Said the PFAS family contains thousands of chemistries not all posing risk and urged decisions based on evidence, not fear0:22:29; questioned Mehan on ratepayer costs0:49:33 and Falbe on brownfield redevelopment0:53:13.

Rep. Robert Menendez (D-NJ), on behalf of Ranking Member Pallone0:23:27: Argued the hearing was designed to create new liability shields for polluters rather than help exposed communities0:23:55, and cited the House-passed PFAS Action Act as offering "real solutions"0:26:39; later pressed panel on whether PFAS work is "done" (all said no)1:39:20.

Susan Bodine, Partner, Earth & Water Law0:28:44: Said Superfund liability is "not about polluter pays" and ensnares parties with little responsibility, creating enormous transaction costs documented by GAO and RAND0:30:280:31:18; explained EPA's enforcement discretion policy only binds EPA, not third-party suits0:32:34; recommended a narrowly tailored statutory passive-receiver exemption1:26:16.

Tracy Mehan, Executive Director of Government Affairs, American Water Works Association0:34:14: Said AWWA represents ~50,000 members serving 80% of North America and utilities are investing billions in PFAS treatment that ironically creates CERCLA exposure0:34:570:35:28; cited Fairfax Water spending $400 million to go from 5 to 4 parts per trillion0:50:07; endorsed HR 1267, the Water Systems PFAS Liability Act0:38:38.

Emily Donovan, Co-Founder, Clean Cape Fear0:39:11: Described nearly 50 years of DuPont/Chemours PFAS contamination in southeastern North Carolina affecting half a million people0:39:47; said she has "never seen the water utility lobby" stand with contaminated communities0:42:53; called for banning PFAS as a class under RCRA and requiring green-chemistry substitutes0:41:590:57:18.

Lawrence Falbe, Chair, ICSC Environmental and Land Use Policy Committee0:44:22: Said the 2024 CERCLA designation has had an "immediate and chilling" effect on commercial real estate deals via Phase I assessments0:46:070:46:32; described a clean, tested brownfield site a data-center developer walked from anyway over PFAS fears1:20:33; urged a statutory passive-receiver exemption modeled on the secured creditor exemption0:48:24.

Rep. Jerry McNerney / Rep. from Massachusetts (Auchincloss)1:28:02: Pressed Mehan on the accuracy and cost of parts-per-trillion PFAS testing and urged federal investment in inline testing1:28:38; asked Donovan about using TSCA to regulate PFAS production proactively1:31:22.

Rep. Randy Weber (R-TX)1:33:35: Entered into the record a letter on incinerator destruction of PFAS waste (Veolia, Port Arthur, TX)1:33:40; asked about small-community litigation capacity and states pausing PFAS sampling to avoid liability1:37:34.

Rep. Frank Pallone's seat filled by Menendez; separately, Rep. from New Jersey (Robert Menendez) questioned Donovan on responsible parties1:42:34 (see above).

Rep. Ben Cline / Rep. from Virginia (chair pro tempore, "Mr. Chairman" segment)1:44:04: Described the Western Virginia Water Authority's Gen X contamination traced to a Chemours-linked cleaning contractor, ProKim1:44:32; asked whether burden-shifting to landowners downstream was fair1:47:23.

Rep. from California (Sara Jacobs / "Miss Baragon")1:49:24: Asked Donovan why some answers were frustrating to hear and pressed on industry disclosure obligations1:49:361:53:08.

Rep. Darren Soto (D-FL)1:54:50: Raised PFAS contamination at the Florida State Fire College and firefighter cancer cases1:55:11; asked about proposed 90% cuts to the Clean Water State Revolving Fund1:58:26.

Rep. August Pfluger (R-TX)2:00:18: Asked Bodine about DoD's ~700 contaminated installations and the cost of case-by-case litigation versus a statutory fix2:00:492:02:26.

Rep. from Ohio (Landsman)2:05:28: Connected the hearing to data-center development and wealth concentration, asking Donovan for her top three priorities2:08:19.

Rep. Ashley Hinson / "Dr. Miller" from Iowa2:11:07: Highlighted Iowa agriculture's soy-based PFAS alternatives2:12:19; asked Bodine and Mehan about litigation incentives and enforcement discretion limits2:12:412:15:30.

Rep. from Louisiana (Troy Carter)2:17:02: Linked PFAS to environmental justice in "Cancer Alley" fenceline communities2:17:56; asked Donovan about RCRA's cradle-to-grave protections2:21:17.

Rep. Buddy Carter (R-GA)2:23:01: Asked Mehan about disposal bottlenecks for PFAS-laden residuals and Bodine about firefighting foam liability at airports2:24:132:27:05.

Rep. Debbie Dingell (D-MI)2:28:16: Cited that 97–99% of Americans have PFAS in their blood and touted her bipartisan PFAS Action Act2:28:53; asked Donovan a series of yes/no questions establishing that Superfund exemptions would not remove PFAS from the environment or help affected families2:31:34.

Rep. from Colorado (Joe Evans)2:33:16: Described Thornton, CO ratepayers paying $2.6 million/year extra due to legacy PFAS from the old Denver airport2:34:15; asked Bodine what happens if the CERCLA rule is vacated by the D.C. Circuit2:37:46.

Key moments

Bodine testified Superfund liability is not causation-based and "in the ubiquity" of PFAS creates unique problems because EPA's 2024 risk assessments suggest that "if you can detect it there's a risk"0:31:420:32:13.

Mehan said Fairfax Water must spend $400 million in capital costs plus 18% of ongoing O&M to go from 5 ppt to 4 ppt PFAS, and estimated national utility costs at roughly triple EPA's own figures0:50:070:50:57.

Falbe described a cleaned, closed brownfield site with a clean Phase I assessment that a data-center developer still refused to purchase over PFAS testing fears, risking forfeiture of earnest money [2:20:33-2:21:00 region / 1:20:33].

Donovan disclosed that Wilmington's utility knew about PFAS contamination for a full year before telling the public, and that Brunswick County faces $167 million and Wilmington $43 million in upgrade costs0:41:001:06:12.

Bodine and Mehan agreed EPA's April 2024 enforcement discretion policy binds only EPA — not the roughly two-thirds of PFAS litigation brought by other parties — citing a New Jersey sewage district (Passaic Valley) still in litigation a decade after EPA tried to settle with it0:32:582:16:15.

Rep. Weber asked Bodine whether some state/local governments are pausing PFAS sampling to avoid triggering CERCLA liability; Bodine agreed this could "increase risk instead of reducing it"1:37:341:38:02.

Dingell's rapid yes/no questioning established Donovan's agreement that Superfund exemptions would do nothing to remove PFAS from water/soil/air, clean up contamination, or help affected families or firefighters2:31:34.

Falbe cited EPA's recent brownfield-grant website update requiring an "affirmative showing" of non-liability for PFAS, which he called inconsistent with how Phase I assessments actually work1:48:35.

Mehan cited two law professors' finding of roughly 600 cases where municipalities were dragged into Superfund litigation by other potentially responsible parties1:15:44.

Rep. Evans described a legacy PFAS site from the old Denver airport (closed decades ago) still costing downstream Thornton, CO ratepayers $2.6 million per year in treatment costs2:33:45.

Metadata

CommitteeHouse Energy and Commerce Subcommittee on Environment
Chamber / CongressHouse · 119th Congress
Date2025-12-18
TypeHearing
Witnesses
Mr. Lawerence Falbe — Chair, International Council of Shopping Centers Environmental and Land Use Policy Committee
Ms. Emily Donovan — Co-Founder, Clean Cape Fear
Mr. Tracy Mehan — Executive Director, American Water Works Association
Ms. Susan Bodine — Partner, Earth & Water Law
Videoyoutube
Transcript447 caption blocks · 24,174 words · 2:38:54 runtime
EventCongress.gov 118784