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

House Energy & Commerce Environment Subcommittee

December 18th, 2025 (recording linked here)

WITNESS & TESTIMONY

• Susan Bodine, Esq: Partner, Earth & Water Law

• Lawrence W. Falbe, Esq: Chair, International Council of Shopping Centers Environmental and Land Use Policy Committee

• G. Tracy Mehan: Executive Director, Government Affairs, American Water Works Association

• Emily Donovan: Co-Founder, Clean Cape Fear

HEARING HIGHLIGHTS

MEMBER OPENING STATEMENTS

• Chair Palmer (R-AL) emphasized that CERCLA’s strict, joint, and several liability framework could sweep in “passive receivers” who neither manufactured nor used PFAS but may have handled contaminated materials. He expressed concern that existing exemptions and defenses may not adequately protect such entities, particularly in the context of brownfield redevelopment. He warned that liability uncertainty could deter redevelopment of hundreds of thousands of brownfield sites needed for housing and infrastructure. He framed the hearing as an exploration of whether legislative changes or clarifications were needed to balance cleanup, fairness, and economic activity.

• Ranking Member Tonko (D-NY) said PFAS contamination posed a serious and widespread public health threat, citing links to cancer, kidney disease, thyroid dysfunction, and drinking water contamination nationwide. He emphasized that federal regulatory action had been long overdue and that recent steps, including drinking water standards and the CERCLA designation, represented critical progress. He acknowledged concerns raised by water utilities and other passive receivers but argued that existing enforcement discretion tools should be allowed to operate before Congress created new exemptions. He warned that preemptive liability carveouts could undermine accountability and weaken environmental protections. He concluded that Congress should not jeopardize hard-won progress in addressing PFAS contamination.

• Chair Guthrie (R-KY) argued that environmental protection and economic growth were not mutually exclusive and stressed the need for regulatory clarity. He raised concerns about how CERCLA liability could affect water utilities, farmers, land developers, and other sectors that did not manufacture PFAS. He noted that PFAS encompassed thousands of chemistries, many of which were essential to modern life and not all equally harmful. He emphasized the importance of focusing regulatory efforts on substances with demonstrated risks rather than allowing fear or misinformation to drive policy.

• Ranking Member Pallone (via Rep. Menendez, D-NJ) said the hearing was misplaced in its focus on liability relief rather than the lived experiences of communities harmed by PFAS contamination. He emphasized that PFAS were toxic, persistent “forever chemicals” linked to cancer, infertility, and developmental harm. He argued that CERCLA accountability was essential to ensuring polluters paid for cleanup and that fears of widespread liability against municipal entities had not materialized. He warned that exemptions would remove incentives for responsible management of hazardous waste and risk shifting costs onto taxpayers and ratepayers. He criticized deregulatory actions that weakened drinking water standards and PFAS reporting requirements.

WITNESS OPENING STATEMENTS

• Ms. Bodine, former EPA Assistant Administrator, said CERCLA was a draconian liability statute that often ensnared parties with little or no responsibility for contamination. She argued that Superfund liability was not based on causation but on expediency, leading to enormous transaction costs spent on litigation rather than cleanup. She explained that PFAS posed a unique challenge because they were ubiquitous and considered harmful at extremely low detection levels. She cautioned that EPA enforcement discretion could not protect parties from third-party lawsuits, which comprised the majority of CERCLA litigation. She suggested Congress consider codifying equitable principles and ensuring the Superfund Trust Fund was used to address contamination without unfairly penalizing passive actors.

• Mr. Mehan, Executive Director of Government Affairs at the American Water Works Association, said water utilities neither manufactured nor profited from PFAS but were bearing massive costs to remove them from drinking water. He explained that treatment technologies generated PFAS-laden residuals that could expose utilities to CERCLA liability for disposal practices that were previously lawful. He warned that CERCLA’s retroactive and joint liability framework could drag utilities into costly litigation, diverting resources from infrastructure investments. He argued that EPA enforcement discretion offered no real certainty because it did not prevent third-party lawsuits. He urged Congress to consider targeted statutory relief, including proposals such as the Water Systems PFAS Liability Protection Act.

• Ms. Donovan, co-founder of Clean Cape Fear, said PFAS contamination was not hypothetical but a daily reality for hundreds of thousands of people in southeastern North Carolina. She described how her community had been used as a PFAS “sacrifice zone” for decades without consent, resulting in severe health consequences. She criticized efforts to weaken CERCLA accountability, arguing they distracted from real solutions and failed to protect impacted families. She called for banning PFAS as a chemical class and designating them as hazardous waste under RCRA. She urged lawmakers to stand with contaminated communities and warned against exemptions that would allow polluters to evade responsibility.

• Mr. Falbe, Chair of the International Council of Shopping Centers’ Environmental and Land Use Committee, said the CERCLA designation of PFOA and PFOS had an immediate chilling effect on commercial real estate transactions. He explained that PFAS ubiquity and ultra-low cleanup thresholds created liability risks for property owners who did not cause contamination. He warned that environmental due diligence now frequently stalls or kills redevelopment projects, especially brownfields and infill sites. He noted that EPA’s enforcement discretion policy did not protect against third-party contribution suits and provided no market certainty. He urged Congress to create narrowly tailored liability protections for passive receivers while preserving accountability for true polluters.

QUESTION AND ANSWER SUMMARY

• Chair Guthrie (R-KY) asked how drinking water utilities removed PFAS and whether CERCLA liability would raise rates for customers, emphasizing affordability concerns. Mr. Mehan responded that utilities used EPA-approved treatment technologies that generated PFAS-containing residuals and warned that litigation and compliance costs would be passed on to ratepayers, especially in smaller systems.

  Chair Guthrie asked whether the benefits of lowering PFAS limits justified the costs of meeting very low drinking water standards. Mr. Mehan answered that moving from roughly 10 ppt to 4 ppt imposed vastly higher costs with marginal additional benefit under standard cost-benefit analysis.

  Chair Guthrie asked why EPA designated only PFOA and PFOS and whether that implied all PFAS were dangerous. Ms. Bodine replied that EPA could address PFAS without CERCLA designation, that listing enabled private lawsuits, and that not all PFAS posed the same risk.

  Chair Guthrie asked how Congress could improve CERCLA defenses to support redevelopment of brownfield and industrial sites. Mr. Falbe said enforcement discretion did not protect against third-party suits and argued Congress needed a narrow passive-receiver exemption to restore market certainty.

• Ranking Member Tonko (D-NY) asked for an explanation of GenX and whether short-chain PFAS were safer substitutes.
  Ms. Donovan responded that GenX was nearly as toxic as PFOA, was released as a byproduct, and illustrated the danger of “regrettable substitutes.”

• Rep. Latta (R-OH) asked whether EPA enforcement discretion could realistically protect passive receivers from liability.
  Ms. Bodine answered that enforcement discretion applied only to EPA actions and could not prevent private contribution lawsuits.

  Rep. Latta asked what options utilities had if sued by other potentially responsible parties.
  Ms. Bodine responded that utilities’ only practical option was to litigate or seek an EPA settlement for contribution protection.

• Rep. Peters (D-CA) argued that PFAS regulation should focus upstream under TSCA and the Safe Drinking Water Act rather than CERCLA liability.
  Mr. Falbe agreed that CERCLA uncertainty discouraged redevelopment and described a data-center project stalled by PFAS liability fears despite prior site cleanup.'

• Rep. Joyce (R-PA) asked whether existing CERCLA defenses like the bona fide prospective purchaser defense adequately protected passive receivers.
  Mr. Falbe responded that the defense was uncertain, self-certifying, easily lost, and insufficient for ubiquitous contaminants like PFAS.

  Rep. Joyce asked whether PFAS ubiquity made innocent landowner defenses difficult to invoke.
  Ms. Bodine answered that proving PFAS sources was uniquely difficult and suggested shifting burdens of proof or clarifying liability standards.

• Rep. Auchincloss (D-MA) asked whether unreliable PFAS testing at ultra-low levels undermined public confidence and warranted federal R&D investment.
  Mr. Mehan and Ms. Bodine responded that testing at parts-per-trillion levels remained technically challenging and that standards were driven by detection limits rather than pure risk thresholds.

  Rep. Auchincloss asked whether TSCA should be strengthened to regulate PFAS production.
  Ms. Donovan agreed in principle but warned against liability shields that allowed polluters to hide behind utilities or local governments.

• Rep. Weber (R-TX) asked how CERCLA liability would affect water affordability in rural and disadvantaged communities.
  Mr. Mehan answered that small systems lacked rate base and expertise and would face disproportionate financial strain.

  Rep. Weber asked whether fear of CERCLA liability discouraged PFAS sampling and transparency.
  Ms. Bodine replied that liability fear could indeed deter monitoring and increase risk rather than reduce it.

• Rep. Menendez (D-NJ) asked whether the nation’s work on PFAS contamination was complete.
  All witnesses answered that it was not complete.

  Rep. Menendez asked whether CERCLA exemptions would help clean up contaminated communities.
  Ms. Donovan responded that exemptions would not remove PFAS, accelerate cleanup, or help affected families.

• Rep. Schakowsky (D-IL) asked what Congress could do to protect children from PFAS exposure.
  Ms. Donovan answered that banning PFAS as a class, strengthening RCRA, and holding polluters accountable were necessary to protect children and families.

• Rep. Soto (D-FL) asked about PFAS exposure among firefighters and affected families.
  Ms. Donovan responded that firefighters faced elevated cancer risks from PFAS-containing foams and gear and lacked adequate protections.

  Rep. Soto asked how cuts to the State Revolving Fund would affect utilities’ ability to address PFAS.
  Mr. Mehan warned that reduced federal funding would slow cleanup and increase pressure on local ratepayers.

• Rep. Pfluger (R-TX) asked about fiscal implications of PFAS contamination at military installations.
  Ms. Bodine replied that cleanup costs were substantial, undercounted, and that CERCLA designation enabled lawsuits to force prioritization.

  Rep. Pfluger asked whether litigation was an efficient way to resolve PFAS contamination.
  Ms. Bodine responded that litigation diverted funds from cleanup and that trust-fund-based remediation was more efficient.

• Rep. Miller-Meeks (R-IA) asked how CERCLA’s joint and several liability incentivized litigation over cleanup.
  Ms. Bodine answered that small or peripheral parties often spent more on lawyers than remediation.

  Rep. Miller-Meeks asked how PFAS designation affected real-estate financing and redevelopment.
  Mr. Falbe responded that liability uncertainty froze transactions and discouraged brownfield reuse.

• Rep. Dingell (D-MI) asked whether CERCLA exemptions would clean up PFAS contamination or protect families.
  Ms. Donovan answered no to each question and urged Congress to strengthen, not weaken, Superfund authority.

• Rep. Evans (D-CO) asked how PFAS cleanup costs affected utilities downstream of legacy contamination.
  Mr. Mehan responded that cumulative regulatory costs and legacy pollution imposed unjust burdens on ratepayers.

  Rep. Evans asked whether Congress should act to prevent penalizing non-polluting entities.
  Mr. Falbe answered that PFAS’s unique characteristics justified a narrow CERCLA exemption.