WASHINGTON – U.S. Senators John Boozman (R-AR) and Cynthia Lummis (R-WY) introduced five bills to ensure industries and municipalities are not subject to liability claims if the Environmental Protection Agency (EPA) designates per- and polyfluoroalkyl substances (PFAS) compounds as hazardous substances. The covered entities in these bills either do not contribute to PFAS contamination or are required to use PFAS-containing substances through regulations. The senators introduced these legislative initiatives in response to an August 2022 proposed EPA rule to designate two PFAS compounds as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund, which would subject any entity with PFAS contamination to potential CERCLA liability from the EPA and third parties.

“We need to protect farmers, ranchers and others not directly responsible for PFAS contamination from being potentially held liable by the EPA or subject to sweeping private legal action that could wreak havoc on their ability to operate. This looming threat will not only harm multiple industries and likely raise costs for consumers, but also increase uncertainty when we can least afford it. I’m pleased to join Sen. Lummis and our colleagues on this legislation to prevent these adverse outcomes,” Boozman said. 

“There is no doubt we need to consider the environmental impacts of PFAS chemicals but suing entities who did not contribute to the contamination is overkill, especially considering some of these entities, such as ranches and water facilities, are just downstream receivers,” said Lummis. “This is another instance of the Environmental Protection Agency overstepping its authority and putting onerous regulations on businesses in Wyoming. That is why I am introducing this suite of legislation to protect entities from frivolous lawsuits.” 

Senators Roger Wicker (R-MS), Kevin Cramer (R-ND), Pete Ricketts (R-NE), Markwayne Mullin (R-OK), Dan Sullivan (R-AK) and Lindsey Graham (R-SC) also cosponsored the legislation.

Should this rule be finalized, entities such as water treatment plants, landfills, farms and ranches would be held liable for PFAS contamination they are not responsible for and entities such as airports, fuel depots and refineries that are required to test use fire suppression foams that contain PFAS would be at risk for litigation. Here’s what they are saying about this suite of bills: 

“Farmers do not produce PFAS chemicals, nor do we intentionally use them on our farms, so we appreciate Senator Lummis’ bill to ensure farmers are not punished for a challenge we didn’t create,” said American Farm Bureau President Zippy Duvall. “This issue is facing all of society and the wrong approach would threaten rural livelihoods and cause additional supply chain disruptions at a time when many families across the country are already struggling with higher food prices.” 

“This legislation helps clarify that absent gross negligence or willful misconduct public works departments should not be held liable for something they did not create. To not enact this legislation risks exposing innocent parties, who followed best practices, to consuming and expensive legal challenges. We must instead focus on holding accountable those who made and profited from PFAS and other ‘forever chemicals’,” said Keith Pugh, President of the American Public Works Association. 

“NWRA has consistently sought relief from CERCLA liability for PFAS at landfills,” said National Waste and Recycling Association President and CEO Darrell Smith. “We believe a narrow exemption for the municipal solid waste industry serves to keep CERLCA liability on the industries that created the pollution. NWRA appreciates these senators taking a balanced approach to ensure that landfills will remain the safest method to manage solid waste.”

“Providing airports with CERCLA liability protection for complying with long-standing federal regulations and requirements is critical in speeding the transition to fluorine-free firefighting foams,” American Association of Airport Executives President and CEO Todd Hauptli said. “We are grateful to Senator Lummis and other bill sponsors for their leadership and urge Congress to adopt this important legislation as soon as possible.”

BACKGROUND:

PFAS are widely used, long-lasting chemicals, components of which break down very slowly over time. They are used in some household materials, but more notably in fire suppression foams.

Because of their widespread use, PFAS can be found in the blood of people and animals and are present in low levels in a variety of food products and in the environment. 

Each of the five pieces of legislation will address a certain industry targeted by superfund liability. 

Agriculture PFAS Liability Protection Act 

Airports PFAS Liability Protection Act

Fire Suppression PFAS Liability Protection Act

Resource Management PFAS Liability Protection Act