▶ 0:15:27Chair Capito: Good morning and thank you very much for being here. We certainly appreciated. We will roll on time because we have a lot of other committees that are meeting and I appreciate our panelists for being here. The environment and public works committee see many issues with p5's contamination including impacts on public health, liability if used -- issues and regulatory responses.
▶ 0:15:54Chair Capito: I have seen the first-hand the impact of pfa's contamination in my home state of west virginia, and I will continue leading efforts to protect the health of my constituents. Cleanup, legacy pollution and to ensure that the folks responsible find there -- fund their share of the cleanup costs. We will discuss another part of the problem, how cleanup and disposal directly affects millions of dollars of infrastructure investment.
▶ 0:16:25Chair Capito: Project managers including federal contractors encounter pfas when expanding airports, rebuilding roads, bridges, and expanding water systems. Since there is not a clear framework kiting where contaminated soil should go or who is liable, it becomes difficult to clean up and remediate the sites once contamination has been identified.
▶ 0:16:49Chair Capito: To address concerns after the epa's designation of pfopfos as hazardous substances, the agency issued a events -- an enforcement discretion policy including landfills, airports and farms. That guidance does not offer an answer to the practical questions that are halting projects. First, the systems between contractors and disposable facilities is breaking down.
▶ 0:17:21Chair Capito: The projects face a major and impossible situation. Landfills will not accept soil and less the soil is tested for pfas, because insurance companies will not provide coverage to the operator. When contractors do test the soil, there is no established federal standard to measure against. Insurers often deny coverage if any pfas is detected, even if it is below varying state standards.
▶ 0:17:51Chair Capito: Second, because project managers cannot price the liability risk, potential bids, and with huge contingencies or none at all. This leads to a cost premium that affects how critical projects are built and maintained, and those costs are passed through to tax and ratepayers. The epa can take steps to improve how the problems are managed throughout the full lifecycle of the construction project.
▶ 0:18:18Chair Capito: The agency should issue clear disposal guidance to restore predictability so that contractors and landfills know where to dispose of contaminated soil. Projects need federal soil screening levels that are practical and incremental. Communities need guidance on managing stormwater treatment systems and pfas, and we need to address the root cause of the contamination. Pfas hotspots such as military sites and airports are major sources of the problem.
▶ 0:18:48Chair Capito: Without limiting decontamination, pfas will seep into water supplies leaving communities with a forever drinking water problem. For locations with the highest levels, we might need disposal options beyond containment. The good news is that the technology is here and the epa has validated the process through thorough zest -- testing, showing that pfas can be destroyed above levels at 99.99 percent.
▶ 0:19:18Chair Capito: That technology is expensive, which is why the epa needs to offer guidance. Liability issues must be addressed. The epa should provide predictable pathways for good-faith actors using the proven bipartisan model established under the brownfield cleanup process. One liability slowed brownfield cleanups, the epa used administrative settlements to protect innocent landowners and local governments. That same authority exists today.
▶ 0:19:49Chair Capito: The april 24 enforcement memo on pfas enforcement compete -- explicitly contemplate settlements with passive receivers to protect those entities from third-party clip -- third-party claims. These close the liability gap that enforcement discretion remains open and ensures that polluters pay. These are critical interim solutions but case-by-case agreements are too slow to fully address a nationwide challenge.
▶ 0:20:19Chair Capito: Recognizing the limitations of the administrative authority, congress must provide a permanent statutory solution through the 2002 brownfield amendments. The fix would remove the burden of case-by-case settlements by providing lasting legal certainty. This model is a proven framework for good governance and is the model we should consider for p5's -- pfas.
▶ 0:20:46Chair Capito: Congress should minimize future pfas contamination and develop a clear path to destroy pfas, and protect passive receivers. And I look forward to hearing from our witnesses.
▶ 0:21:07Sen. Whitehouse: Welcome to all of our witnesses. Pfas is a public health menace. These stomach -- dangerous chemicals have been widely used for decades despite the harm they cause. Pandora's box has been opened and these forever chemicals are here to stay in our water, our food chain, and our bodies. Chemical manufacturers and other polluters will try to pass the responsibility of managing the risks onto the rest of us. That is neither fair nor right.
▶ 0:21:40Sen. Whitehouse: The superfund law is the best tool we have to hold them accountable. The retroactive joint and liability framework is crucial to its success. If you are responsible for the release of harmful chemicals, you are responsible for cleaning them up, that is something that our mom's mostly taught us. The manufacturers who profited should be held responsible.
▶ 0:22:05Sen. Whitehouse: If there are other responsible actors, the epa or manufacturers can properly seek payment of cleanup costs from these parties. Manufacturers should not be able to abuse the law and aggressively use third-party suits to avoid paying their fair share. The epa has the authority and the tools to clean up contaminated sites, while protecting those who have acted responsibly.
▶ 0:22:31Sen. Whitehouse: The epa has discretion when it comes to recouping cleanup costs and can provide protection through settlements. This is what the memo from the biden administration dad, but it remains to be seen how the current epa will enforce the law, or if they will continue writing a blank check to industrial polluters. Pfas and pfoas should remain hazardous substances.
▶ 0:22:56Sen. Whitehouse: We need research to identify safe ways to destroy or dispose of them without creating nearly contaminated sites. That research was already under it -- underway at the epa office, but administrators eldon recklessly shut the office down. Funding is needed to remove pfas from the drinking water and the environment but the trump administration wants to slash the funds needed for it.
▶ 0:23:23Sen. Whitehouse: Communities need guidance to make sure they stay safe and healthy but thousands of employees have been pushed out of the agency. The epa's responsibility is to protect human health and the environment. The evidence of the epa advocating that responsibility and taking up the new mantle as the polluter protection agency. I welcome hearing about the authority and where there are gaps or -- in the administration.
▶ 0:23:51Sen. Whitehouse: If there is a role in congress to make sure that the right people pay to fix this problem, I look forward to finding a solution and if I may add on a different point, I just returned from the climate cop in brazil, as an official codel of one. Many of us travel on them and we are accustomed to having the state department provide basic logistical support.
▶ 0:24:20Sen. Whitehouse: In this case, the state department refused to provide any logistical support whatsoever for this codel. No officer, no connection, no facilitation of every fit -- of anything. Even my credentials, they refused to facilitate. I had to work through private organizations for every aspect of this trip.
▶ 0:24:48Sen. Whitehouse: I have never seen that happen before, and I think it is a very unfortunate new development. It is deliberate. Here is the statement of the state department about this. "the trump administration refused to use taxpayer dollars to send or facilitate any official travel for this conference." they did it on purpose. So, for those of you who plan to take codels, beware of this.
▶ 0:25:18Sen. Whitehouse: For those of you who first see the prospect of a democratic administration one day, -- first see the prospect of a democratic administration one day, should the democratic administration review support because I do not like wire where they are going, just know that that started here.
▶ 0:25:42Sen. Whitehouse: Best would be to stop it here as well before it becomes a reciprocal tit for tat piece of executive versus legislative combat, or do service. Thank you.
▶ 0:25:54Chair Capito: Thank you, senator whitehouse. We are going to turn to our witnesses for their opening statements. The first witness is eric gerstenberg. He has the co-chief executive officer of clean harbors. It operates hazardous waste management facilities across north america, including incinerators that have participated in the testing to validate pfas destruction capabilities.
▶ 0:26:26Chair Capito: Well, and you are recognized for five minutes. Thank you for coming.
▶ 0:26:29Mr. Gerstenberg: Madam chair, ranking member whitehouse and members of the committee, my name is eric and I am the co-ceo of clean harbors, the leader in environmental services. My testimony draws on 45 years of experience in delivering a broad range of syria -- of services including hazardous and nonhazardous waste management and emergency response. I will respectfully request that my full statement be included in the hearing record.
▶ 0:26:59Mr. Gerstenberg: Thank you for the opportunity to address the intersection of hazardous waste management and the challenge of emerging contaminants and the resource comfort -- conservation and recovery act and pfas. The recovery act was habit -- was made in 1970 six. Across america hazardous waste was opposed -- disposed of and poorly constructed landfills. Drums were left to contaminate soil and groundwater.
▶ 0:27:30Mr. Gerstenberg: Environmental disasters were common. This changed all of that by establishing a comprehensive framework for the safe management of hazardous waste. Today we face new challenges. Compounds were using decades in firefighting foams, airports, firefighting schools, and military installations. Coatings, consumer goods, and other applications. The presence of pfas and groundwater in drinking water is widespread and it is a growing concern.
▶ 0:27:59Mr. Gerstenberg: The science is clear, pfas does not break down naturally and is a serious threat to human health. At clean harbors, we believe that the framework allows for the management of pfas safely. We have vast transportation networks and facilities strategically located. We operate 10 incinerators and seven hazardous waste landfills.
▶ 0:28:27Mr. Gerstenberg: The 360 thousand customers include fortune 500 as well as government agencies. Through our employees we deliver cradle-to-grave solutions ensuring that every sip -- shipment is tracked and community protected. We are also a national provider of critical response services. We have addressed events such as deepwater horizon, the east palestine ohio train derailment and the plane crash in louisville, kentucky.
▶ 0:28:52Mr. Gerstenberg: Regarding pfas, we introduced a total solution with offerings ranging from lab analytics to water filtration to site remediation. Last november we completed our third full scared test -- third full scale destruction testing in utah. The study was completed in partnership with the epa office and the pentagon's military office.
▶ 0:29:16Mr. Gerstenberg: The peer reviewed results was recently written -- introduced -- reviewed by the epa and showed that it was destroyed in one of the record permitted high temperature systems at levels exceeding -- and this is below any limit or guideline. Sophisticated facilities provide an opportunity to address the concerns of americans impacting communities.
▶ 0:29:45Mr. Gerstenberg: For pedophiles to be addressed many are looking to epa to provide regulatory framework beyond its initial drinking water standard. We have done extensive analysis of the contamination footprint throughout the U.S.. We believe there is an adequate capacity to manage contamination and the environment through the following hierarchy. Highly contaminated soil, foam should be properly remediated and destroyed in these high temperature incinerators.
▶ 0:30:14Mr. Gerstenberg: Low contamination materials should be put through landfill. Low contaminated materials, which have background levels can be managed to properly line subtitle d landfills.
▶ 0:30:35Mr. Gerstenberg: Industrial drinking water can separate the pfas contaminants with the contaminated media being managed in high temperature incinerators. There is adequate capacity throughout the U.S. to properly manage all contaminated sites. We look forward to continuing that partnership and applying our diverse capabilities to address the scourge. Thank you for the opportunity to testify and we appreciate the committee's leadership. And we are happy to address questions.
▶ 0:31:04Chair Capito: Thank you. Our next witness is leah pilconis. Did I say that radically? She is the general counsel of the associated general contractors of america. She represents 27 thousand firms across all sectors of the construction industry including highway transportation and infrastructure projects.
▶ 0:31:31Chair Capito: Welcome back to epw and you are recognized for your opening statement.
▶ 0:31:34Ms. Pilconis: Thank you. Chairman, ranking member and rembert -- and members of the committee, thank you for the opportunity to testify. I serve as general counsel of the associated general contractors of america representing 28,000 companies including construction firms to build and maintain infrastructure. Pfas is everywhere, and yet standards that contractors need to manage are nowhere.
▶ 0:32:02Ms. Pilconis: Because pfas is present in soil, groundwater and building materials as well as everyday products, contractors can encounter it anywhere they work. Contractors are not pfas polluters, but builders, but under the current law they are treated as parties responsible. Agc supports congressional efforts to modernize congressional liability laws and our message is simple.
▶ 0:32:31Ms. Pilconis: Contractors need reasonable liability protections and a clear path to compliance when they encounter pfas during construction activities. The epa has designated them as hazardous substance day -- substances. Ads this committee knows, the liability is strict, and retroactive. Fault does not matter, intent does not matter and knowledge does not matter.
▶ 0:32:57Ms. Pilconis: A contractor who unknowingly encounters pfas, even decades ago can we swept into liability. That is an untenable status quo, and one we felt compelled to challenge in court. Even without cleanup orders, pfas is driving up project cost now. Agc members report higher trucking, disposal, testing, consulting and insurance costs.
▶ 0:33:22Ms. Pilconis: Landfills are refusing pfas suspect materials like dirt, forcing longer diesel burning halls to hazardous disposal sites. Pedophiles concerns are also disrupting recycling and beneficial reuse practices, increasing the reliance on costlier virgin materials. And insurance is retreating. Many contractors are seeing devos exclusions, higher deductibles and low limits in their policies.
▶ 0:33:54Ms. Pilconis: These costs mean higher infrastructure costs that fall on american taxpayers. We cannot build america's infrastructure on liability quicksand. Epa has not given us the numbers we need to know when construction materials like soil and recycled asphalt are safe to reuse, or instructions on how to manage for where to dispose of p impacted soil, groundwater or other construction materials.
▶ 0:34:25Ms. Pilconis: In that vacuum, some project owners choose not to chat -- test at all shifting down to contractors who cannot detect or insure against it. The epa asked contractors to trust its enforcement discretion, but that is not a defense and it can be withdrawn at any time. This uncertainty is already discouraging bidders, especially on suspect projects like airports and military installations.
▶ 0:34:53Ms. Pilconis: With fuel or -- fewer qualified and competitive bidders, prices rise and taxpayers ultimately pay more. The administrator recently acknowledge that surplus passive receiver problems require congressional action. Agc agrees. Contractors who incidentally encounter pfas should not be treated as polluters.
▶ 0:35:20Ms. Pilconis: Agc respectfully urges congress to take four steps, amend the law to protect innocent contractors, and formally recognize them as passive receivers who should not be treated as polluters. Direct the epa to issue clear disposal and review standard so contractors have a lawful path to manage pfas impacted soils and groundwater.
▶ 0:35:43Ms. Pilconis: Require pfas early in federally funded project planning so the risks are known before bid time and cost can be accurately estimated and fairly allocated. And ensure that pfas policy does not drive up infrastructure costs by clarifying liability, reducing uncertainty and preventing runaway bid premiums on public projects.
▶ 0:36:11Ms. Pilconis: Contractors are ready to address pfas, but today they are being asked to take on immediate costs with no lawful path to compliance. You cannot comply with standards that do not exist. You cannot insure a risk that you cannot do fine. And you cannot build affordable infrastructure on limitless liability.
▶ 0:36:35Ms. Pilconis: Congressional action is necessary to protect -- to provide a lawful compliance path and ensure america's infrastructure can be built safely and affordably. Thank you.
▶ 0:36:44Chair Capito: Thank you. Our final witness is kate bowers, supervisory attorney for the congressional research service. Ms. bowers specializes in environmental law, including the comprehensive environmental response liability act. I welcome you back to the committee and thank you for coming back and thank you for being here. You are recognized for five minutes.
▶ 0:37:11Ms. Bowers: Chairman, ranking member and members of the committee, good morning. I am a supervisory attorney at the congressional research service. Thank you for inviting me to testify.
▶ 0:37:27Ms. Bowers: In my brief remarks I will be addressing some of the implications of the designation of two substances, as hazardous substances under the comprehensive environmental response compensation or liability act. My testimony will also address the epa enforcement discretion and settlement policy with respect to those designated.
▶ 0:37:54Ms. Bowers: It authorizes the epa to clean up contaminated sites and to compel entities that bear responsibility for contamination to perform or pay for cleanup activities. Private parties that incur cleanup costs may seem -- seek to recoup those costs from other parties or a superfund trust fund. This framework is intended to ensure that there will be responsible parties to bear the cost of cleaning up contamination, and that all responsible parties that are able will be required to share in those costs.
▶ 0:38:25Ms. Bowers: In april of 2024, the epa announced a final rule designating these as hazardous substances. Designation does not trigger a cleanup action to address contamination at any site. Nor does it cause these to be addressed or regulated under other figure -- federal environment statues. Designation does not impose cleanup standards or requirements for the treatment, storage and disposal of wastes.
▶ 0:38:58Ms. Bowers: Instead, the treatment, storage and disposal of wastes is regulated under race different statutory scheme. Designation does unlock the full suite of the cleanup authorities, and subjects releases of pfas to the relevant -- liability framework but does not determine liability. For a person to be liable several requirements must be met.
▶ 0:39:24Ms. Bowers: There must be a release or threatened release of hazardous substance into the environment and a response action and cost. And only certain categories of parties with a connection to the contamination can be held liable. Those parties are called potentially responsible parties and they include current owners or operators of the site, past owners and operators, arrangers and transporters.
▶ 0:39:51Ms. Bowers: Parties might be reliable for cleanup costs, injury to natural resources, damage assessments and federal public health studies, but not for product liability, or property damages or health effects or medical costs.
▶ 0:40:05Ms. Bowers: Under the current law, it contains some statutory defenses from exemptions to liability that might limit the liability of parties that need certain look -- certain criteria including an exemption for releases or discharges in accordance with permits issued by other specified federal environment statutes.
▶ 0:40:27Ms. Bowers: It allows any person, including the epa, local governments, tribes and private parties to sue a prp to recover response costs and allows a party that has been required to pay response costs to assert a contribution claim to compel other prp's to bear an equitable share of the cost.
▶ 0:40:49Ms. Bowers: Prp's that have resolved their reliability in a judicially approved settlement cannot then be held liable for contribution claims by other prp's regarding matters addressed in the settlement. Concurrent with the final designation, the epa issued an enforcement discretion and policy memorandum explaining that in intends to focus enforcement efforts on entities that significantly tripped us contributed to the release of pfas in the environment.
▶ 0:41:20Ms. Bowers: The agency does not intend to recover cleanup costs, including water utilities, municipal landfills, local fire departments and farmers, or where other equitable factors do not support enforcement. By itself, the decision not to pursue enforcement would not necessarily protect those entities from enforcement action by state or by third-party lawsuits from entities who themselves have been held liable for response costs and are
▶ 0:41:50Ms. Bowers: Seeking to recoup the costs from other reliable parties. The epa has explained that it intends to use the settlement process to protect entities from such suits which could address the potential outcome, specifically the agency stated that when it enters into settlement agreements, it would seek to secure a waiver of rights that would prevent the settling prp from pursuing contribution claims against certain parties.
▶ 0:42:19Ms. Bowers: The epa also stated that it might enter into settlement agreements with parties covered by the settlement policy in order to provide them with contribution protection. Thank you, and I would be happy to answer questions.
▶ 0:42:31Chair Capito: Thank you very much. I am going to start with you. As I outlined in my opening statement, the epa and congress worked together to resolve liability issues with brownfield sites as a model of how we should work together on pfas contamination and in that case the epa relied on existing tools to manage third-party contribution risk while congress considered whether a statutory risk was warranted.
▶ 0:43:01Chair Capito: The apa -- the epa wondered if it could take an approach to help entities unwillingly swept into liability. Does the brownfield experience offer a useful precedent?
▶ 0:43:15Ms. Bowers: Thank you for that question. It may. Prior to the act which amended it, there was no specific advice -- exception codified for what is referred to as bona fide prospective purchasers. Prior to 2002, the epa used its enforcement discretion just as it indicated as what it intended to do and it used that enforcement discretion in a few ways.
▶ 0:43:44Ms. Bowers: The agency had issued guidance and developed a model agreement for a prospective purchasers of contaminated property. Where in epa action had been taken or was ongoing or contemplated. What epa did was enter into prospective purchaser agreements. These functioned as and often contains covenants not to sue and to protect those purchasers from liability.
▶ 0:44:16Ms. Bowers: The agency issued something called comfort letters or status letters that related to and contained information about the epa intent to pursue enforcement or not at a site. Again, there are some similarities to what the epa has indicated with what it will do in respect to pfas, entering into settlement agreements to provide protection from third-party contribution claims and requiring waivers of rights in settlements with major prps,
▶ 0:44:48Ms. Bowers: And that would certainly be options as was embedded -- for indicated as limiting the liability.
▶ 0:44:53Chair Capito: Thank you. Both of you, I have this question. Without clear standards, landfills are refusing materials due to inconsistent acceptance and we have covered this in all of our statements. Routine debris is being hauled hundreds of miles, imagine that an environmental impact across state lines because hazardous waste facilities are the only ones who will accept the material.
▶ 0:45:19Chair Capito: This failure is driving up costs, overwhelming limited waste capacity and generating unnecessary emissions. So, I will go to you first, what do you need to see from the epa's forthcoming disposal guidance to better manage this pathway.
▶ 0:45:41Ms. Pilconis: So the epa has destruction and disposal guidance, but it does not give contractors any actionable steps that provide any sort of certainty in the field. Contractors have experienced dealing with have -- hazardous materials, lead, asbestos and pcb.
▶ 0:46:04Ms. Pilconis: In that case the construction industry is operating under a well-defined federal epa code -- playbook laying out how to dispose and standards. That is what we need to see from the epa, clear risk-based thresholds. The epa needs to set background levels and we need concentration limits that will tell us and distinguish between restricted and unrestricted use is.
▶ 0:46:31Ms. Pilconis: Without that contractors do not know whether pfas impacted soil is contamination or acceptable for reuse. We need clear disposal instructions. Contractors need to know which types of landfills can accept pfas materials and under what conditions. Many materials are turning away suspect soil by default, so we are stuck with higher costs, longer halls and project delays.
▶ 0:47:01Ms. Pilconis: Without consistency or clarity, uncertainty will continue to inflate bids, disrupt competition and increase infrastructure costs for taxpayers.
▶ 0:47:12Mr. Gerstenberg: Thank you, chairman. At clean harbors, we have done extensive analysis and testing. Much of it with the epa as well as the department of war. We have outlined criteria in our written testimony, and that is the criteria that leah is referring to that is needed by the epa to release standards and thresholds that can be achieved for the safe cleanup and disposal.
▶ 0:47:45Mr. Gerstenberg: We have outlined standards for high temperature and thermal incineration and first sub standards -- for subtitle c and d landfills. Those standards are based on science, which has been accomplished over the past 20 years of research. We believe that it is now time to lay out that guidance all those threshold levels so that they can be used to help protect human health and the environment.
▶ 0:48:14Chair Capito: I have a vote over on commerce and I will turn it over to senator husted. I want to make one quick comment. What I hear bleeding through all of this and what concerns me is that you hear that guidance was released in 2024. We know that the guidance can change from administration to administration.
▶ 0:48:40Chair Capito: Obviously it has not been specific enough because there is a lot of gray area. Hopefully, working with you all, we can find something that the epa can go to in a very permanent way. Because, I think Ms. bowers, you said something like a letter of a servant -- assurance from the epa. There was a comfort letter. A lot of people do not want a letter -- a comfort letter from the epa.
▶ 0:49:10Chair Capito: That is hard to imagine in some sense. A comfort letter will not give much certainty to a lot of businesses and others that I think you all are expressing. Hopefully I will make it back from my vote. Thank you. Senator whitehouse.
▶ 0:49:24Sen. Whitehouse: Thank you chairman. I assume that all of the witnesses agree that pfas is a dangerous substance. Is that correct?
▶ 0:49:36Mr. Gerstenberg: Correct.
▶ 0:49:38Sen. Whitehouse: Correct?
▶ 0:49:45Ms. Pilconis: I guess we would need more data.
▶ 0:49:48Sen. Whitehouse: It is a dangerous substance? Correct.
▶ 0:49:54Ms. Bowers: Yes. As epa indicated in its designation, the agency has found that it may present a danger to human health.
▶ 0:50:04Sen. Whitehouse: And you all also agree that the prospect of liability is one motivation to clean up that dangerous substance?
▶ 0:50:18Mr. Gerstenberg: Yes.
▶ 0:50:20Sen. Whitehouse: Agreed?
▶ 0:50:23Ms. Pilconis: Liability is is -- is what is increasing the clock -- the cost.
▶ 0:50:30Sen. Whitehouse: It is also ensuring the cleanup. It is a motivation to do the cleanup. You cannot agree with that?
▶ 0:50:37Ms. Pilconis: I think the epa designation of the site will trigger certain cleanup. I think liability will cause increased focus and now it is a fear of whether or not certain materials are going to put you into liability.
▶ 0:50:59Ms. Bowers: Liability certainly could be a potential -- could be a motivation depending on who is performing it.
▶ 0:51:09Sen. Whitehouse: So, where you have a site that has been contaminated with pfas, the easy way out would be to just let the boys and community -- poisoned community, neighborhood, or facility they are the cost of that contamination and harm to people who live in the community, neighborhood, or use the facility.
▶ 0:51:39Sen. Whitehouse: And, that would bear the cost and their own health and safety harms. That is obviously not a great solution. And that is the reason that congress acted, because leaving it to the local community to be poisoned as a bad plan. We want to make sure that we do not work backwards to having these exemptions reopen the path to local communities being poisoned.
▶ 0:52:12Sen. Whitehouse: Do you all agree that exemptions from liability hand, if they are done wrong, transfer the harm or cost back to the public? As opposed to among the responsible parties?
▶ 0:52:28Mr. Gerstenberg: We believe that very similar to what has happened with the laws that the polluter should pay. And that there is sampling and analysis based on what has happened in that environmental and contaminated area that can be traced back to the original polluters or contributing polluters of the area, though that the polluter will pay.
▶ 0:52:55Sen. Whitehouse: It is not the intention of your testimony to transfer the danger of harm related to pfas back to the exposed public, is that correct?
▶ 0:53:08Ms. Pilconis: No. I mean we --
▶ 0:53:14Sen. Whitehouse: Great.
▶ 0:53:17Ms. Bowers: When certain parties are exempted from liability, that does as a general principle reduce the number of parties that might be available to pay for cleanup costs.
▶ 0:53:31Sen. Whitehouse: And the question is, does that additional burden of cleaning it up move to other responsible parties, or does it get dumped back on the community, facility, or neighborhood that has been poisoned.
▶ 0:53:47Sen. Whitehouse: I would also make my time and my time is running short and I would make the argument that not only can this be a shift from responsible parties back to the potentially poison public, but can worsen the danger if it limits the liability incentive to do the cleanup work.
▶ 0:54:06Sen. Whitehouse: So, I hope we can agree as we work through the problem that two very bad outcomes of our work would be to move in the form of additional ink -- additional poisoning or public health harm or still not only to move the burden back to the public but to worsen the burden to the public because the responsibility of the cleanup will have escaped the responsible parties and made
▶ 0:54:38Sen. Whitehouse: Things worse. Those of the things I would like to avoid and appreciate that in my time is expired.
▶ 0:54:45Sen. Husted: Ok. I appreciate all of you being here today. And I'm trying to understand p5's and how to do something about it.
▶ 0:55:00Sen. Husted: It is, and this is not what you are here to testify, but there are amazing product still today made with pfas in it, and we are talking about how harmful it is as a chemical in high quantities, even though it is part of the things that we serve our food and cook our food and all those things are happening today with p5's. -- pfas.
▶ 0:55:35Sen. Husted: It seems to me with being involved with issues that we want to clean up things that we later described -- discovered or harmful and we have to figure out the most cost-effective ways to do that. Because in the absence of a cost-effective way, they will just sit there and no one will do anything about it, and no one will accept responsibility and move to take care of it.
▶ 0:55:57Sen. Husted: And I became aware of this issue several years ago and talking with the folks in columbus, who have done a great deal of research on pfas and the implications of what it would take to clean that up. They have been at the forefront -- forefront of advancing innovative technologies and solutions to address these issues.
▶ 0:56:27Sen. Husted: They completed it -- they created a spinoff company called revive environmental which has a technology called pfas annihilator which destroys got thousands of gallons of afff, which is, I understand, the ingredient that needs to be or element that needs to be destroyed.
▶ 0:56:54Sen. Husted: They have done this successfully in airports for commercial customers and I am sure that there are other ways to do this. What are and I will start with you, what are the most cost-effective ways to deal with high concentrations of pfas and destroy them so that we can move this process forward?
▶ 0:57:18Mr. Gerstenberg: Thank you for the question. We believe that high temperature permitted incinerators are cost-effective for afff, and today we are actually managing and disposing the change out of fire department equipment and systems, cost effectively through that solution.
▶ 0:57:41Mr. Gerstenberg: We believe that the other technologies being developed such as you mentioned that they have been working with is not scalable nor cost-effective. However, existing technology that exists throughout the united states can be of high materials. We are participate -- we have participated in plans with states to remove afff from fire departments.
▶ 0:58:11Mr. Gerstenberg: Yesterday we had a piece of fire department equipment at one of our massachusetts locations being cleaned out and flushed. That capability is out there today. It exists, and it is cost-effective. The important thing to revert back to is that there are levels and thresholds based on science that can be laid out by the epa, that can allow people to act.
▶ 0:58:39Mr. Gerstenberg: Things in the parts per million and parts per trillion, and we do not need to go into the gory details but we could of suggested levels based on the science that could be set, that dictate cost-effective remediation, such that when infrastructure is building -- being built, subtitle d landfills will accept them and at high contamination incinerators are cost-effective.
▶ 0:59:06Mr. Gerstenberg: There is not enough of it out there that it would drive a price tag that is beyond anybody's ability to manage.
▶ 0:59:13Sen. Husted: Ok. And so you have conducted a mass balance analysis of your hazardous waste incineration and you have the results of that?
▶ 0:59:26Mr. Gerstenberg: Correct, and they were recently published by the epa. It was a recent participant as well as the department of war participated in the sampling and studies to validate the information, and that was publicly released recently in september.
▶ 0:59:46Mr. Gerstenberg: And it proves based on the most updated standard that the high temperature incinerators and I want to emphasize that they are not normal incinerators but epa approved and they have nine base criteria that must be managed properly. We are highly regulated by the epa.
▶ 1:00:05Sen. Husted: I would conclude within this, it is that one of the things that we often confront in environmental cleanup is who is liable for it, how do you fix that? Where does the money come from? But I also know that I am typically not a fan of a one solution approach. I know there are a lot of people looking at different ways to do it.
▶ 1:00:35Sen. Husted: I hope that the epa will continue to aggressively test the different solutions and then we will find out which ones are the most cost effective, and then provide that regulatory certainty liability, who is responsible, how we clean it up and then how do we resolve people of liability once it is cleaned up in a timely fashion. Senator blunt-rochester.
▶ 1:01:13Sen. Husted: The development of pfas varieties fraud have become a standard in the industries to prevent corrosion to safety applications such as firefighting foams that keep us safe. Pfas is part of our world, but these advancements have come with a cost.
▶ 1:01:34Sen. Husted: Without proper disposal, these chemicals contaminate our soil and water, putting communities at risk for increased rates of health conditions including cancer, infertility, and birth defects. We need to work to protect the public health and environment.
▶ 1:01:53Sen. Husted: My first question is for you, prior to the designation of pfas as hazardous substances, how did the epa handle the cleanup of these pollutants?
▶ 1:02:07Ms. Bowers: Thank you for the question. Prior to the designation, they were not considered hazardous substances. And so, cleanup authority to address them was more limited. I should note that it is, and for more than one contaminant of concern to be present at a cleanup site.
▶ 1:02:35Ms. Bowers: And so, it might have been the case that where pfas was co-located, it might have been cleaned up or addressed incidental to other contaminants. But, prior to designation, the epa's response authority would only have been available to address an imminent and substantial endangerment to public health.
▶ 1:02:59Sen. Blunt-Rochester: And how will the new designation change the way that cleanups are conducted?
▶ 1:03:04Ms. Bowers: Thank you. The cleanup process remains the same as it was. Epa would typically begin by investigating and assessing the nature and extent of contamination and identifying potentially responsible parties. Cleanup of a news lead -- of a newly designated pfas could be at the sites that have already been cleaned up or will be cleaned up.
▶ 1:03:35Ms. Bowers: It could potentially be identified and cleaned up at new or additional sites as well.
▶ 1:03:38Sen. Blunt Rochester: I know the epa has historically focused on the parties most responsible for pollution. What tools does the epa have to support potential passive receivers like airports or water utility companies that are either required by law to use pfas, or unaware of contamination?
▶ 1:03:59Ms. Bowers: Thank you, as was mentioned in the opening remarks, it is a strict liability statute. That means liability attaches regardless of intent, knowledge or prior legal regime.
▶ 1:04:19Ms. Bowers: As I mentioned earlier, the epa does have enforcement discretion at its disposal and the agency can stick -- can declined to take enforcement action and has indicated an intent to do so, and to use the settlement to provide some protection. I would note that it is common for passive receivers to be regulated under other federal and environmental frameworks.
▶ 1:04:48Ms. Bowers: Possibly and most significantly for purposes of this hearing, the clean water act. If entities are discharging or releasing a hazardous substance, in accordance with or in compliance with a specified federal environmental permit including certain permits under the clean water act, that release is or can be considered a federally permitted release.
▶ 1:05:19Ms. Bowers: And federally permitted releases are exempt from liability specifically. That is something that is a very fact specific inquiry, but could repot -- could apply with respect to certain passive receivers.
▶ 1:05:33Sen. Blunt Rochester: As you mentioned last year, clean harbor is conducting a pfas incineration study in partnership with the office of research and demonstration, and department of defense. Can you discuss how your process prevents air and water pollution, and as a follow-up, how you are using it to monitor to ensure the safe destruction?
▶ 1:06:00Mr. Gerstenberg: The disposal testing that we did was at our high temperature incinerator in utah. And there were stringent, very stringent monitoring devices that were put throughout the unit, understood the contaminant levels being fed into the unit, and we were able to monitor the destruction all the way through the units, and the very advanced pollution control systems put on the back end to ensure complete
▶ 1:06:33Mr. Gerstenberg: Destruction at two to eight times below any thresholds for any air monitor. We were able to monitor that.
▶ 1:06:39Sen. Blunt Rochester: My time has expired and I have additional questions I will submit to the record.
▶ 1:06:45Sen. Husted: Senator ricketts.
▶ 1:06:48Sen. Ricketts: Thank you, and I would like to thank the chair and the ranking members for holding the hearing as well as the witnesses for appearing before us. Nebraskans have a shared concern about pfas. Chemicals plays the essential role in every lives of nebraskans. They are used as fertilizer, and fire suppression foams are crucial for emergency response at airports.
▶ 1:07:19Sen. Ricketts: Some specific chemicals are likely harmful. Pfoa and pfas have already been regulated and this administration is working hard to uphold the standards while also providing commonsense solutions for the high costs.
▶ 1:07:37Sen. Ricketts: Commonsense solutions such as additional time for compliance with new rigorous standards will help small water systems like those in small -- in rural nebraska and commonsense solution should always be used as we try to tackle difficult problems. One of those is pfas cleanup. As you know, the epa designed -- designated pfas as a hazardous substance.
▶ 1:08:06Sen. Ricketts: Without legal protection, this move creates significant risk for passive receivers. Passive receivers are just everyday folks trying to serve their communities. That is why I introduced an amendment removing legal liabilities from passive receivers. It is a commonsense solution. Farmers, ranchers and firefighters deserve to know that they are not on the hook for expensive cleanup of chemicals they did not create.
▶ 1:08:35Sen. Ricketts: The administrator acknowledge that we need to provide certainty for these industries. Should congress enact legislation granting public water utilities, farmers and other passive receivers in exclusion to protect innocent communities and ratepayers?
▶ 1:08:55Mr. Gerstenberg: We believe they should, and we believe that the polluter should pay, and we believe through sampling and analysis, we are able to trace back with who the polluter is.
▶ 1:09:07Sen. Ricketts: Has that been typical to say that the polluter pays?
▶ 1:09:11Mr. Gerstenberg: Yes. For the typical hierarchy of prp, potentially responsible parties, there is sampling and analysis that can be done to trace back to the polluter's.
▶ 1:09:27Mr. Gerstenberg: There are also levels and threshold levels of disposable technologies that can be utilized based on background levels, high concentrations and that is what we need as we included in our written statements, those suggested thresholds to be acted upon to be able to move on the cleanup.
▶ 1:09:45Ms. Pilconis: Yes. Thank you. Contractors need passive receiver protections to prevent them from being responsible on the full cost of cleanup, where they incidentally encountered pfas during the course of ordinary construction. Pfas has been used for decades and it is everywhere. There was not testing. Historic projects that contractors worked on going back decades could expose them to liability today.
▶ 1:10:16Ms. Pilconis: A disposal site that you took soil to 20 years ago could attach you to clean up liability 10 years from now. The other thing really unique about construction and why construction needs passive receiver protections because unlike a fixed facility they work across america on hundreds of sites in every community, building roads, bridges and working on airports.
▶ 1:10:46Ms. Pilconis: We are excavating soil and moving materials and reusing aggregates and many disposal sites. That makes the pfas superfund exposure and liability exponentially greater for construction.
▶ 1:10:59Sen. Ricketts: Thank you. I understand innovative technologies are being used to address pfas alternatives. The use of soybean meal is one of those promising opportunities as it can be used as an alternative for firefighting foam. The foam is 84% bio-based and certified under the bio preferred program.
▶ 1:11:23Sen. Ricketts: Supporting these alternatives will not only create new markets for our soybean farmers, particularly the concern of someone from nebraska, but has the potential to perform just as effectively. And with that, I will turn it over to you.
▶ 1:11:38Sen. Husted: Thank you. Senator padilla.
▶ 1:11:42Sen. Padilla: Good morning and I appreciate your participation today in this hearing. I have two specific questions regarding potential liability of "passive receivers" including municipal water and wastewater districts under the law. Epa's enforcement policy is to refrain from bringing actions against these municipal entities.
▶ 1:12:11Sen. Padilla: The municipalities remain vulnerable to third-party actions seeking their contribution to response costs. The municipalities can attempt to defend against such third-party actions by reaching settlements with the epa that protect them from third-party contribution actions.
▶ 1:12:34Sen. Padilla: Rob clarks testified in this committee at a hearing on pfas liability last year that a supreme court case has ended settling passive receivers' ability to defend against third-party claims. Specifically, in the atlantic research case, the supreme court stated that third parties could bring cost recovery actions under section 107 against settling passive receivers, even if they were barred against
▶ 1:13:05Sen. Padilla: Bringing contribution actions. I know this is getting very technical, but this is important. The case raises significant questions about what proportion of potentially responsible parties can seek cost recovery claims, and the extent to which a court, using equitable discretion can reduce liability for settling passive receivers.
▶ 1:13:30Sen. Padilla: I understand that you are still researching the issue, but can you provide initial thoughts on how the atlantic research case affects the passive receiver's thank you for the question, senator. As you noted, there are two different types of actions to recoup cleanup costs under cercla.
▶ 1:13:55Sen. Padilla: There are cost recovery actions under section 107a and contribution claims under section 113. Which parties are able to bring claims under which is probably a little bit more technical than we can go today, although I will note that when a party is able to bring its claims as a contribution claim, which is typically when a party as it self faced liability, it is barred from bringing a section 107 a cost recovery claim.
▶ 1:14:33Sen. Padilla: Epa's enforcement discretion policy, as well as cercla's contribution protection provision in section 113 of the statue provide protection from claims for contribution. The question of whether there are additional claims that passive receivers may potentially face liability for outside the universe of contribution is a difficult one to answer and would require
▶ 1:15:05Sen. Padilla: Pretty intensive analysis of the nature of the settlement with epa, the claims that are being brought against that passive receiver, as well as how -- whether and how a reviewing court applies any equitable factors to evaluate the extent of that passive receiver's liability for response cost. I would be happy to discuss this further in response to additional questions.
▶ 1:15:32Sen. Padilla: I will definitely take you up on that offer, because there is no shortage of local governments, wastewater and miscible service providers that have shared this concern. My colleague, senator schiff, as well. This is a follow-up and is for each of the witnesses. How will do potential settlements with epa protect municipalities and others from actions by third parties?
▶ 1:16:01Sen. Padilla: What specific circumstances concern you if you don't believe municipalities and other parties are sufficiently protected? We will start with Mr. gerstenberg.
▶ 1:16:08Mr. Gerstenberg: We believe that certainly based on science that you can trace back to the polluter who initiated the pfas contamination. We believe there are cost effective solutions to be able to support. There was that has been released, $2 billion under the government, to be able to help wastewater treatment plants as an example begin to put treatment systems in. There is also funding from settlements with large companies such as 3m.
▶ 1:16:39Mr. Gerstenberg: There is funding that exists and we believe there is difficulty accessing that funding. People are not readily aware of how to get to that, to put treatment systems in to help protect human health and the environment.
▶ 1:16:50Sen. Padilla: To be contented. -- continue. Ms. pilconis?
▶ 1:16:55Ms. Pilconis: Settlements are one tool in the toolbox, but not a solution in itself. There is no guarantee they will be offered. It is epa's choice and they do not provide the upfronts or t or nationwide relief contractors need. If a contractor is talking to an epa attorney about a settlement agreement it means they are in the mix as a potentially responsible party, and that is not work, tractors -- contractors want to be. It means lawyers fees.
▶ 1:17:26Ms. Pilconis: Contractors will still need to buy. It doesn't fix the liability problem. Also settlements with large contributors could actually make things worse for contractors, particularly if they are broad. You can make contractors and other downstream parties more exposed to cercla liability and take away recovery rights.
▶ 1:17:48Sen. Padilla: Ms. bowers? >> senator curtis.
▶ 1:17:53Sen. Curtis: --
▶ 1:17:58Sen. Padilla: May Ms. bowers briefly respond?
▶ 1:18:02Ms. Bowers: Whether the protection roof -- afforded by epa's settlement, it raises beyond what I am able to testify as an attorney. What I can say is that it is difficult at this point to identify the specific fact patterns under which a party that receives contribution protection under cercla would still face liability under cercla.
▶ 1:18:29Ms. Bowers: I would note that even with protection from liability under cercla parties may still potentially face liability under other federal or state laws.
▶ 1:18:37Sen. Padilla: Thank you very much. Thank you, Mr. j. >> senator -- Mr. chair. >> senator curtis.
▶ 1:18:47Sen. Curtis: Workable for local governments and businesses and fiscally responsible to taxpayers. As we advance national cleanup standards we must ensure that the burdens do not fall unfairly on pass-through entities such as contractors, municipal utilities, small engineering firms, recycling facilities, and others who may have handled pfas -containing materials as part of their normal operating contributing to the contamination.
▶ 1:19:17Sen. Curtis: These entities are essential to building and maintaining our water systems, but when liability or compliance costs fall on them those costs ultimately flow through to families. Homeowners. In the broader housing market. In utah we are struggling to be able to buy homes. So, Ms. pilconis, many people who have lived their their entire lives in utah can no longer afford to buy a home.
▶ 1:19:44Sen. Curtis: How does cercla pass-through liability, especially for contractors and water districts, affect the overall costs of building and maintaining homes?
▶ 1:19:56Ms. Pilconis: The costs agc is familiar with would equally apply to homebuilding work. Pfas is everywhere. It is even found in rural communities. The increased costs contractors are facing with regard to disposal costs, higher material costs because they are unsure if they can reuse soil or reuse aggregate, the tightening insurance market, the issue with taking on more risk in contract,
▶ 1:20:28Ms. Pilconis: All of that without a way to price, to share, to transfer risk, the prices, these bid prices, the homebuilding prices, the prices of infrastructure that decrease in qualified bidders, it is happening now. It is happening with federal infrastructure. The same could apply to cost of homebuilding.
▶ 1:20:52Sen. Curtis: What should congress -- what steps should congress take while taking new the research that shows for not all pfas derivatives pose the same level of harm? Could there be thoughtful exemptions?
▶ 1:21:06Ms. Pilconis: So, congress can protect innocent contractors from being treated as potentially responsible parties when the incidentally and pfas. They could also require pfas testing early in federally-funded project planning so contractors know the risks before time. Administrative action alone is not going to solve this problem. Epa cannot change cercla's strict liability.
▶ 1:21:35Sen. Curtis: Mr. gerstenberg, your clean harbors technology is impressive, but expensive. What legislation or regulatory actions could help delay these costs so that smaller rural and lower income water districts like many in utah can realistically access this technology? And is there any component for university partnerships that may be a part of this? I would love to know your thoughts on that.
▶ 1:22:03Mr. Gerstenberg: Thank you, senator. We believe that there is well-founded science to be able to put thresholds based on contamination levels of what has to go to a high temperature incinerator versus a landfill. We believe those thresholds need to be put in place. And based on the signs there is cost effective solutions for being able to build homes.
▶ 1:22:33Mr. Gerstenberg: And being able to excavate that soil and manage it to a lower-cost technology than high temperature thermal incineration. That science needs to be released and those thresholds can be put there. They can still protect the human health and be executed on cost effectively. I think the breakdown is that those standards have not been released yet.
▶ 1:22:58Mr. Gerstenberg: So that contractors, instead of performing the construction, know they can take it to a subtitle landfill without driving up exponential costs.
▶ 1:23:08Sen. Curtis: Thank you. Ms. bowers, maybe tying into this, crs has done great work. Has there been any additional research identifying which pfas derivatives are harmful and watch -- what concentration levels they present risk within the water system so that perhaps we can deal with this issue?
▶ 1:23:27Ms. Bowers: Thank you for the question, senator. The specific properties of different pfas is beyond the scope of my expertise as an attorney at crs. I would be happy to follow-up up with additional colleagues and see what we can find in the literature regarding the effects of pfas.
▶ 1:23:47Sen. Curtis: Thank you. To his point, I think that would be helpful to members of the senate. How impactful are the high cost mitigation or destruction systems in reducing risk?
▶ 1:24:03Ms. Bowers: So that I'm sure I understand your question, you are referring to this mitigation and treatment system with respect to pfas? I don't know the answer to that question.
▶ 1:24:13Sen. Curtis: Ok. Thanks to all of our witnesses. Thanks, chair. I yield my time back.
▶ 1:24:20Chair Capito: Thank you. Senator schiff.
▶ 1:24:23Sen. Schiff: I share the concerns many have raised about the potential liability to water and wastewater systems that are passive recipients of pfas and played no role in that pollution, but could be on the hook for compensation for cleanup.
▶ 1:24:48Sen. Schiff: At the same time there have been concerns raised about lack of exclusion -- lack of exclusions and whether that sets a precedent that could lead to more blanket exclusions were that it might impede cleanup efforts in which water systems are provided resources to help with the cleanup process. Two questions. One, Ms. bowers, can you articulate any concerns over a blanket exclusion? Of passive recipients?
▶ 1:25:21Sen. Schiff: And, Ms. pilconis and Mr. gerstenberg, if you could comment on, what about an approach that will codify the ep's policies of shielding the minimus entities from third party litigation if they are acting in good faith? Would the current policy expressed during the prior administration of not enforcing these actions, if codified would that provide sufficient protections for these passive recipients?
▶ 1:25:54Ms. Bowers: Thank you for the question, senator. The question of whether a liability exemption under cercla statute would have unacceptable effects or whether the level of risk remaining to passive receivers would be unacceptable requires some policy balancing I'm not really able to speak to.
▶ 1:26:15Ms. Bowers: What I can say is that to date congress has not enacted a liability exemption that would apply with respect to a specific substance. The liability exemptions congress has enacted have applied to categories of parties, types of activity, but they have not been chemical-specific in the way that an exemption for pfas liability would be.
▶ 1:26:42Ms. Bowers: I also noted in response to another question that there may be some consideration around potentially reducing the overall number of parties that would be liable under cercla and would be available to pay for all or a portion of response costs. Again, that is a policy balancing that would be for congress to decide.
▶ 1:27:03Sen. Schiff: Thank you.
▶ 1:27:06Ms. Pilconis: Pfas is very different. It is ubiquitous. It is already in groundwater, already in soil. Consumer products, building materials. The contamination is largely historic. We are not talking about a spill. It is invisible. You cannot smell it. You cannot see it. It is unavoidable. Contractors work across hundreds of sites using hundreds of landfills, reusing materials over decades.
▶ 1:27:36Ms. Pilconis: Cercla was not intended for chemicals this widespread or this persistent, or this impossible to avoid. And for other chemicals, we have clear standards. We have clear background levels. Concentration limits telling us what our restricted versus unrestricted use and disposal guidelines and requirements. We don't have that for pfas.
▶ 1:28:02Sen. Schiff: Is that a problem with the fact that the regulatory agencies have not moved quickly enough to provide those kind of limits for pfas? I know there are certain types of pfas that are more difficult to measure, and maybe the science is not there yet, but is that a problem with regulatory inaction or something unique to pfas?
▶ 1:28:26Ms. Pilconis: It is a big problem that we have designated two of the most ubiquitous chemicals as hazardous substances under cercla, which is attaching that strict joint and several retroactive liability to anyone who has touched it when we don't have any standards to manage it.
▶ 1:28:43Sen. Schiff: Mr. gerstenberg? What would you think of an approach that codifies the regulatory discretionary policy as expressed previously?
▶ 1:28:55Mr. Gerstenberg: First I would like to reiterate that we believe there has been enough science accomplished to be able to put out standards for regulatory cleanup and thresholds around that that can be enacted on. Those need to be put in place. The sooner, the better. Stoves are in place we can make sure we protect passive receivers of the materials and focus on the polluters of pfas.
▶ 1:29:21Mr. Gerstenberg: We just think that those standards need to be put in place so people can act.
▶ 1:29:33Sen. Schiff: Do you have any view about the relative merits of a blanket, in terms of power the previous administration not to go after the minimus and that
▶ 1:29:47She Will Mr. Gerstenberg: Yes, I think that there should be exemptions around the minimus amounts of pfas and that passive receivers should be protected from liability.
▶ 1:30:01Sen. Schiff: Ok. Thank you, madam chair.
▶ 1:30:04Chair Capito: Senator alsobrooks.
▶ 1:30:06Sen. Alsobrooks: I want to say thank you to the witnesses today for being here. Marilyn has taken a particularly proactive approach to addressing pfas contamination. Our state has conducted statewide drinking water testing, surface water sampling, and fish tissue analysis across the chesapeake bay watershed.
▶ 1:30:32Sen. Alsobrooks: These efforts have helped to identify the causes for contamination long before many other states had comparable data. Maryland has made these investments so that responsible parties can be clearly identified and communities can benefit from cleanup. Cercla is designed to ensure that polluters, not the public, bear the cost of remediation. My first question is for Ms. bowers.
▶ 1:30:58Sen. Alsobrooks: How does cercla's liability framework support states like maryland that have on -- already done the hard work of gathering evidence and mapping contamination? And how does it ensure the cleanup costs are properly assigned to the responsible actors.
▶ 1:31:13Ms. Bowers: Cercla envisions a robust role for states. States are able to take enforcement action under the statute. States provide input into listing sites on the national priorities list of superfund sites. States have a role in determining when cleanup is appropriate at a site.
▶ 1:31:39Ms. Bowers: States also can enact -- they are often referred to as mini superfund laws, so, their own schemes under state law for addressing contamination from various substances. Many fate -- states have been addressing pfas contamination under their own state laws prior to the designation under circa. -- cercla.
▶ 1:32:06Sen. Alsobrooks: Another question for you. In maryland some of the most contaminated sites we have found are located at federal facilities, like aberdeen proving ground, the naval air station, and other department of defense sites where firefighting foams that contain pfas and industrial processes were used for decades.
▶ 1:32:30Sen. Alsobrooks: State sampling has repeatedly shown that these federal facilities are among the largest contributors to contamination in the watershed in maryland has been working to address this contamination, but the state ultimately relies on epa's enforcement to ensure that federal agencies take responsibility for cleanup in the same manner as private entities.
▶ 1:32:52Sen. Alsobrooks: How does cercla ensure that federal facilities are held to the same cleanup standards and obligations as private polluters and what mechanisms are in place to make sure that federal agencies fully participate in remediation in a timely matter -- manner, when they are identified as responsible Ms.
▶ 1:33:11Bowers: Parties? Think you for that. Under cercla federal facilities and the federal government face the same liability in the same requirements as other sites. In addition to that, with respect to military sites, dod were mediates environmental contamination under the defense environmental restoration program and congress has been requiring dod to respond to an address contamination from
▶ 1:33:42Bowers: Pollutants, contaminants, and hazardous substances, which would have included pfas even prior to the designation of those substances under cercla.
▶ 1:33:53Sen. Alsobrooks: Ms. pilconis, I want to ask you a question as well. Our navigation projects throughout the chesapeake bay region frequently involve judging. That has been found to contain pfas, particularly near military installations.
▶ 1:34:14Sen. Alsobrooks: Handling and disposing the settlement -- sediment poses unique uncertainty along transportation and disposal, as well as potential regulatory liabilities. Given these challenges what specific guidance or technical support from epa or state agencies would help contractors safely manage pfas-contaminated sediment, maintain compliance, and avoid delays in project timelines?
▶ 1:34:43Ms. Pilconis: We need concentration thresholds so we can understand restricted versus unrestricted use. We need disposal standards so that we know what needs to be taken where. We can't take all soil involved in construction to a hazardous waste landfill. In some cases our members are being told that that is what they need to do, because the closest municipal solid waste landfill will not accept the soil.
▶ 1:35:12Ms. Pilconis: We have gotten prices, price differentials I included in my written statement from members, one from an example of a contractor had waste from a dod facility. They were told they cannot take it to a regular landfill. Costs went from $20 yard to $200 and $300 yard. We are talking about tens of thousands of yards of soil.
▶ 1:35:38Ms. Pilconis: In the northeast lightly-contaminated pfas soil, the same thing had to be hauled to a hazardous waste landfill 100 miles away. The costs are increasing exorbitantly because we do not have concentration thresholds and we do not have the instructions or standards on what to take where. What does need to go to a hazardous waste landfill?
▶ 1:35:59Sen. Alsobrooks: Thank you. I have also a question for Mr. gerstenberg. The need to address pfas contamination is urgent and incineration is one approach to destroy pfas. However, there is so much uncertainty about the process, leading to concerns with this method and the facility in utah has a history of permit violations, including burning waste that contains mercury and lead.
▶ 1:36:27Sen. Alsobrooks: What has clean harbors done to prevent similar issues during pfas incineration?
▶ 1:36:33Mr. Gerstenberg: Thank you, senator. We have done extensive testing with the epa. Also with the state of utah in burning pfas and approving through our high-temperature incineration that pfas can be properly disposed of. High concentrations of pfas.
▶ 1:36:55Mr. Gerstenberg: Thermal high-temperature incineration is a higher cost, and that should be utilized around higher concentrations of a foam and contaminated soils. In the cases we were just talking about where remediation of dredging soils, those could go to a more cost-effective solution than hazardous waste incineration.
▶ 1:37:17Sen. Alsobrooks: Thank you.
▶ 1:37:19Chair Capito: Thank you. Senator kelly.
▶ 1:37:23Sen. Kelly: Thank you, madam chair, and thank you, all of you, for being there today. As I have discussed in this committee previously, remediating pfas contamination in arizona's aquifers is an urgent priority, and I was happy to be here during senator alsobrooks' questions. I've got a couple more on the topic.
▶ 1:37:56Sen. Kelly: In arizona, in the face of long-term drought, groundwater remains a critical source of drinking water for so many communities across our state. Any of those communities even bank water underground to prepare for future shortages. Now we face a serious challenge from pfas contamination. In many of those aquifers.
▶ 1:38:18Sen. Kelly: In tucson, for example, pfas has forced the city to shut down nearly 30 groundwater wells, resulting in more than $71 million in cleanup and treatment costs. Clearly there is a problem here that we need to solve. Cercla has -- as was previously mentioned, sometimes known as the superfund law, has shown promise as a tool to address these challenges.
▶ 1:38:45Sen. Kelly: Last october epa approved an air force plan to ensure safe drinking water in -- and undertake pfas cleanup efforts in tucson, where my wife and I live. And my granddaughter lives. Under that agreement air force will work with the city of tucson to investigate pfas releases from nearby facilities, yet the department of defense is still dragging its feet, delaying this and other cleanups nationwide for years.
▶ 1:39:17Sen. Kelly: Without cercla, though, these cleanups might not happen at all. Some -- so, my question to each of you is, is cercla the proper tool to address our nation's pfas contamination problem? If it isn't, what authority should congress leverage instead? We will start with Mr. gerstenberg.
▶ 1:39:38Mr. Gerstenberg: Thank you, senator kelly. We believe cercla is a good foundational tool to address similar stances of the regulations that were put in in 1976. We also believe that it is time to act. It is time to put thresholds and contamination levels in place by the epa such that the bases you were just referring to need to act so it doesn't sit there and contaminated drinking water in the ground. We believe there is a way to act.
▶ 1:40:08Mr. Gerstenberg: There is a safe way to manage and treat water cost-effectively and dispose of it and clean up these sites. What we think those thresholds of contamination levels based on what that has been exposed to needs to be enacted and put in place so that department of defense, military installations will act accordingly.
▶ 1:40:29Sen. Kelly: So cercla is the right thing, you just need the trigger to start using the tools? Ms. pilconis?
▶ 1:40:37Ms. Pilconis: Thank you, senator. My comment is simple. -- or, similar. Contractors are on the front lines of cleanup, and doing the remediation work. But for everyday infrastructure work and for the work we are doing to repair and revitalize and rebuild our nation's infrastructure, they are incidentally encountering pfas as a result of just doing that
▶ 1:41:09Ms. Pilconis: Work. Cercla is making them potentially responsible for the full cost of cleanup because of the strict retroactive liability scheme. Right now we have no lawful path to compliance. We have no numbers we have no instructions or standards on how to dispose of material. We don't have restricted uses. No, we have no unrestricted uses. Don't know when we can reuse materials.
▶ 1:41:38Ms. Pilconis: So, having the scheme in place without having the proper roadmap to compliance, which we have with other hazardous materials, we are in a very difficult and unique situation where contractors are exposed to extreme risk and liability, and contractors are touching soil and groundwater across america using many, many different landfills.
▶ 1:42:02Sen. Kelly: It sounds like you think we need something specific to pfas?
▶ 1:42:09Ms. Pilconis: We need a lawful path to compliance.
▶ 1:42:12Sen. Kelly: Ms. bowers?
▶ 1:42:13Ms. Bowers: Thank you, senator. Cercla is one tool in the federal legal toolbox to address pfas. It is the broadest mechanism under federal law for requiring parties to perform or pay for cleanup actions. There are other enforcement authorities also available -- available under federal law and maybe applicable under particular situations. Mentioned the tucson site.
▶ 1:42:42Ms. Bowers: Epa, in addition to addressing issues under cercla, that site has oft -- also taken act -- action under the safe drinking water act. Other statutes may be relevant. I would also note that statutes that focus on regulatory and compliance issues, that establish permitting regimes, and allow federal agencies or states to establish guidelines or requirements for entities potentially discharging pfas into their environment as part
▶ 1:43:13Ms. Bowers: Of their operations, as well as statutes like the toxic substances control act address manufacture and use of chemicals. These can all be relevant, depending on which element of pfas an agency is interested in addressing.
▶ 1:43:28Sen. Kelly: Thank you to the three of you for being here, and, matter chair -- madam chair, I have a question I would like to submit to Mr. gerstenberg for the record.
▶ 1:43:39Chair Capito: Senator markey.
▶ 1:43:41Sen. Markey: Cities and towns around massachusetts are grappling with treatment facilities and worried about the liability costs. They are putting in all of this work and this expense for one reason. To keep people safe. Because when these toxic so-called forever chemicals build up our environment and make their way into our food, water, our bodies, we now know they are connected to harmful effects.
▶ 1:44:13Sen. Markey: Cercla, also known as the superfund law, is a key piece of legislation we used to fight back against toxic chemicals. I was in the room on the committee in the house of representatives, drafting.
▶ 1:44:28Sen. Markey: I brought the wilburn case to the committee, so they could see what was happening, where company after company just dumped all of these chemicals into the groundwater and ultimately into the water and into the lives of children catching leukemia and other diseases which were harmful.
▶ 1:44:53Sen. Markey: That became the movie "a civil action," the book, and that is what I fought for in 1980 on the committee. Against those companies that were fighting in massachusetts. In the community which I represented. It has been used over the years, and this is now a refrain which keeps coming back.
▶ 1:45:21Sen. Markey: The first reagan administration, they were trying to undermine superfund. In the 1990's they were trying to do it again. So, I know what this law means to communities and families throughout the country who were worried about whether they going to get poisoned by some company's long-ago actions. This look at how it works. Ms. bowers, is it true that the agency targets bad actors who are responsible for significant releases?
▶ 1:45:51Ms. Bowers: Yes, that is correct, senator.
▶ 1:45:58Sen. Markey: They go after the polluters to reduce cost on water utilities and increase your affordability. In the 45 years since the passage of the superfund has the epa used its discretion when dealing with utilities and municipalities?
▶ 1:46:16Ms. Bowers: Thank you for that question, senator. I don't have specific data on the instances in which the agency has used its enforcement discretion. It may not be public invisible win crane agency has declined to pursue enforcement.
▶ 1:46:35Ms. Bowers: What I can tell you, though, is that epa has indicated in various enforcement discretion policies and guidance over the years since it was enacted that it typically seeks not to pursue municipal governments for cleanup costs under cercla unless there is some sort of extenuating circumstance.
▶ 1:47:00Sen. Markey: The enforcement description has been utilized for cleanup spirit I'm worried about efforts that we create loopholes in the statute of the superfund law, which has built in protections to avoid those not responsible for releases from liability. Ms. bowers, just to put a point on it, have we ever passed laws that exempt specific groups from the liability framework? For certain chemicals under superfund?
▶ 1:47:32Ms. Bowers: Thank you, senator. Not with respect to certain chemicals, but congress has enacted liability exemptions that would apply across the full suite of chemicals.
▶ 1:47:42Sen. Markey: Cercla possesses options. Between when the number -- de minimis settlements and ability to pay entities which can be safeguarded from liability that they should not have to incur. Epa already has a wide variety of tools to protect parties who are not responsible for pollution from undue liability.
▶ 1:48:09Sen. Markey: We actually need to preserve our polluter pay laws without putting huge potholes in it to trap us later on. As we work to clean up the toxic forever chemicals already here, we have to stop new pfas from getting into the environment. We are trying to bail out our boat without plugging the hole in the bottom. We are at risk of sinking.
▶ 1:48:37Sen. Markey: This is particularly true when epa administrator lee zeldin has yet to give any pfas compounds a designation to standardize disposal procedures and has rollback drinking water standards on compounds set doing the biden administration. That backsliding undermines the safe drinking water act. There were hundreds of varieties of these compounds and administrators old and won't even make steps towards a few of them.
▶ 1:49:06Sen. Markey: Meanwhile the toxic stream of these products continues into our environment. We need to clean up our act across the board. That means stopping new toxins from getting in, supporting cleanup efforts in our towns, and focusing our energy on the companies that have been causing the damage.
▶ 1:49:26Sen. Markey: If I may, madam chair, there are currently no federal regulations governing the incineration of pfas, which can be sent to municipal solid waste incinerators. Sludge incinerators, earn pits and hazardous waste incinerators that are not designed for this purpose.
▶ 1:49:43Sen. Markey: Clean harbors' own studies show that effects of pfas incineration pinned heavily on temperature and operating conditions and we know that many municipal incinerators operator at temperatures that cannot safely destroy pfas. Mr. gerstenberg, thank you for being here.
▶ 1:50:07Sen. Markey: This would clean harbors support the designation of pfas as hazardous waste under the resource conservation and recovery act so epa could establish uniform health protecting -- protection standards for the disposal of pfas-containing waste?
▶ 1:50:23Mr. Gerstenberg: Thank you, senator. Yes, we believe high concentrations of pfas need to be supposed of in high temperature, permitted incinerators. Those high temperatures have been proven to properly destroy pfas compounds.
▶ 1:50:41Mr. Gerstenberg: So, when limitations are put in play, those highly-concentrated must be managed into incinerators that are highly regulated by the epa and have proven that high temperature, permitted incinerators have been proven to properly destroy pfas.
▶ 1:51:02Sen. Markey: This designation is merely a wreck and -- recommendation of what we know. Pfas is a dangerous substance that needs to be properly disposed of, and this would protect the health of the communities living in those areas. We thank you so much for that testimony. We thank all of you. Thank you, madam chair.
▶ 1:51:21Chair Capito: Well, I believe we have no further questions, so I would like to thank the witnesses. I think we got some great comments on the record that we can hopefully use to provide the certainty -- I mean, the uncertainty is what is tying all of your testimonies together. Senators who wish to submit questions for the record have until 5:00 p.m. Wednesday, december 30 do so. I believe senator kelly mentioned he was going to submit one. The witness's responses are due back no later than 5:00 p.m.
▶ 1:51:50Chair Capito: On wednesday, december 17th, and will be submitted for the record. With that, this hearing is adjourned, and thank you all very much.