U.S. Senator Shelley Moore Capito, who chairs the Senate Environment and Public Works Committee, led a hearing focused on improving policies for the cleanup and disposal of per- and polyfluoroalkyl substances (PFAS). The session included questions directed at experts from the Congressional Research Service, Clean Harbors, and the Associated General Contractors of America.
During the hearing, Capito referenced past efforts by the Environmental Protection Agency (EPA) and Congress to resolve liability issues related to Brownfield sites as a potential model for addressing PFAS contamination. She asked Kate Bowers, Supervisory Attorney for the Congressional Research Service, if EPA’s approach with Brownfields could inform future policy for PFAS.
Bowers responded: “It may. Prior to the Brownfields Act in 2002, which amended CERCLA, there was no specific exemption codified in statute for what is referred to as bona fide prospective purchasers. So, prior to 2002, EPA used its enforcement discretion just as it’s indicated it intends to do with designated PFAS. And it used that enforcement discretion in a few ways. The Agency had issued guidance and it developed a model agreement for prospective purchasers of contaminated property wherein EPA action had been taken, or was ongoing, or was contemplated. And what EPA then did was enter into prospective purchaser agreements […] So again, there are some similarities to what EPA has indicated it would do with respect to PFAS. Entering into settlement agreements to provide protection from third-party contribution claims. Requiring waivers of rights in settlements with major PRPs would certainly also be options, as EPA has indicated, for limiting the liability of categories of parties.”
Capito also raised concerns about current gaps in federal PFAS disposal standards that have resulted in landfills refusing materials due to inconsistent criteria. She noted that this situation leads to construction debris being transported long distances because only hazardous waste facilities will accept such materials. This practice increases costs and emissions while straining limited hazardous waste capacity.
Leah Pilconis of the Associated General Contractors of America addressed these concerns: “EPA does have destruction and disposal guidance out now, but it does not give contractors any actionable steps that provide any sort of certainty in the field. Contractors have experience dealing with hazardous materials—lead, asbestos, PCBs, for example. But in that case the construction industry is operating under a well-defined federal EPA playbook, laying out how to manage and dispose—laying out standards. That’s what we need to see from EPA. We need clear, risk-based thresholds. EPA needs to set background levels, we need concentration limits that will tell us and distinguish between restricted and unrestricted uses. Without that, contractors don’t know whether PFAS-impacted soil is actual contamination, or whether it’s acceptable for reuse. We also need clear disposal instructions. Contractors need to know which types of landfills can accept PFAS-impacted materials and under what conditions [...] Without national consistency, clarity, PFAS uncertainty is going to continue to inflate bids, disrupt competition, and increase infrastructure costs for taxpayers.”
Eric Gerstenberg from Clean Harbors added: “At Clean Harbors, we’ve done extensive analysis and testing, much of it with the EPA as well as with the Department of War. We’ve outlined criteria in our written testimony—that is the criteria that Leah is referring to—that is needed for the EPA to release standards of thresholds that can be achieved for the safe cleanup and disposal of PFAS. We’ve outlined standards for the high-temperature RCRA thermal incineration. We outlined standards for Subtitle C landfills, as well as Subtitle D landfills, industrial water and drinking water. Those standards are based on science that has been accomplished over the past 20 years researching PFAS. We believe it is now time to layout that guidance, those threshold levels so that they can be used in the environment to help protect human health and the environment.”
Capito concluded by emphasizing a need for permanent federal guidance on PFAS disposal: “What I hear bleeding through all of this... you hear that guidance was released in 2024. We know that guidance can change from administration to administration... obviously it hasn’t been specific enough guidance because there’s still a lot of gray area there... There’s a lot of people in this country that don’t want a ‘comfort letter’ from the EPA.”
The committee continues its work toward establishing clearer national policies on managing PFAS contamination.
