Click here to watch Ranking Member Capito’s opening remarks from the committee hearing. Click here for letters sent in by more than 250 entities supporting ‘passive receiver’ liability protections for PFAS cleanup.

WASHINGTON, D.C. – Today, the Senate Environment and Public Works (EPW) Committee held a hearing titled, “Examining PFAS as Hazardous Substances.”

Following her opening remarks, Ranking Member Capito submitted into the record letters from more than 250 impacted entities, including state and local governments, drinking water and wastewater systems, airports, agricultural groups, and waste facilities, all urging Congress to include passive receiver liability protections when addressing per- and polyfluoroalkyl substances (PFAS), also known as “forever chemicals,” cleanups. Click here for a complete list and links to the letters.

Capito has long-supported passive receiver protections to ensure the original polluters pay for the cleanup, not taxpayers or utility ratepayers, as she outlined in an op-ed in 2023.

Below is the opening statement of Ranking Member Shelley Moore Capito (R-W.Va.) as delivered at today’s hearing.

“Thank you, Mr. Chairman, and I thank the witnesses for being here, and the full room. It’s nice to see.

“Addressing the challenges of a class of substances, collectively referred to as PFAS, is one of my highest environmental policy priorities.

“Due to their unique chemistry, PFAS has been used in almost nearly every industrial application you can think of since the 1940s.

“Given that PFAS is everywhere, we must carefully consider the best, and most efficient way to address past contamination, and limit future exposure.

“This means prioritizing actions that address PFAS, ones of greatest known health concern, and examining common routes of exposure to those chemicals.

“I firmly believe that the most effective solutions for tackling PFAS require bipartisan collaboration as the chairman mentioned.

“Recognizing the urgency of the situation, I want to continue to work with Chairman Carper to develop tailored legislation. We’ve been trying.

“Last year, the EPA announced it intends to designate two legacy PFAS as hazardous substances under CERCLA [Comprehensive Environmental Response Compensation, and Liability Act].

“Today’s hearing offers an opportunity to evaluate the potential consequences of that proposal.

“CERCLA was promulgated in 1980, after the enactment of the Clean Air Act, Clean Water Act, Safe Drinking Water Act, and other foundational federal environmental statutes.

“CERCLA imposes strict, joint and several, and retroactive liability for releases of chemicals that are designated as hazardous substances.

“CERCLA enshrines the core principle of ‘polluter pays,’ if you cause a release, you are responsible for the cleanup.

“Congress established CERCLA as the last stop in deeming a substance as hazardous, generally a substance is subject to regulation under CERCLA only after it has been first regulated by other statues.

“This leads us to the specific topic of our hearing today.

“Despite having years to evaluate and potentially regulate PFAS, the EPA is considering designating two PFAS under CERCLA before comprehensively addressing them under any other federal environmental statute.

“By the EPA’s own admission, this ‘CERCLA first’ approach does not provide the EPA with flexibility to exempt innocent parties from liability for cleanup costs.

“If an entity meets the definition of a ‘potentially responsible party’ that entity is liable for all clean-up costs, regardless of intent or exercise of due care.

“While I appreciate that the EPA’s claim that it plans to exercise ‘enforcement discretion,’ it will not provide a liability shield to those who had no role or responsibility for PFAS contamination.

“Absent congressional intervention, the burden of cleaning up sites tainted with PFAS will fall on the shoulders of entities like drinking water and clean water systems, and waste management utilities.

“These entities are known as ‘passive receivers,’ they did not manufacture or generate PFAS and were unknowingly, or required by law, to catch or to receive these contaminants.

“Given that the EPA plans to finalize its proposal, Congress must step in, I think, to address the overly broad sweep of CERCLA liability, as Congress has done in the past 11 times before.

“If the agency regulates PFAS under CERCLA, and then the EPA finalizes the drinking water standards, which I’ve been after them to do for several years, as it has proposed to do, the CERCLA listing will have put water utilities in an untenable position.

“Communities would be required to remove the six substances, two of which would be hazardous substances, through water treatment processes, therefore concentrating the PFAS in filters.

“Water systems could be stuck holding those filters because landfills would be unwilling to accept them due to liability concerns.

“Wastewater and storm water utilities, although not responsible for generating these flows, could face similar liabilities, receiving PFAS chemicals through intakes or storm water runoff.

“These ‘passive receivers’ would bear the brunt of these liabilities, facing frivolous lawsuits for just providing essential services.

“No EPA enforcement discretion policy can prevent lawsuits by activist third parties.

“Without congressional action, a wave of lawsuits could potentially raise taxes and utility rates on millions of Americans, all while enriching the trial lawyers.

“This result flips the ‘polluter pays’ principle on its head, turning it into a ‘consumer pays’ model.

“This year presents us with a unique opportunity to confront the PFAS challenge.

“To effectively address these issues, which we should, we have crafted a draft piece of legislation that focuses on creating a comprehensive [strategy] to tackle PFAS pollution.

“I have made it clear that my support of any PFAS legislation is contingent upon also addressing liability under CERCLA, and providing liability protections for those passive receivers.

“This is a non-negotiable condition for me.

“Entities that had no role in creating or controlling these contaminants should not be penalized.

“I am confident that carefully crafted bipartisan legislation can strike the right balance to protect public health and the environment from PFAS contamination, without imposing additional financial strain on American households already grappling with the challenge of daily living.

“I look forward to our collective efforts in finding a comprehensive and fair solution to this pressing and I would say very complicated issue.

“I yield back.”

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