To watch Chairman Capito’s questions, click here or the image above.

WASHINGTON, D.C. – Today, U.S. Senator Shelley Moore Capito (R-W.Va.), Chairman of the Senate Environment and Public Works (EPW) Committee, led a hearing on examining the future of PFAS cleanup and disposal policy.

During the hearing, Chairman Capito asked Kate Bowers, a Congressional Research Service expert, about the opportunity to use the EPA’s previous work to resolve liability issues with Brownfield sites as a model for addressing PFAS contamination and cleanup. When considering effective disposal standards, Chairman Capito asked Clean Harbors’ Co-Chief Executive Officer Eric Gerstenberg and Leah Pilconis, representing the Associated General Contractors of America, about the most critical guidance that the EPA can include in future PFAS disposal policies.

The Chairman directed additional questions to Eric Gerstenberg and Leah Pilconis about capacity concerns at hazardous waste sites and the ways that uncertainty over disposal costs and liability risks are impacting federal infrastructure projects.

HIGHLIGHTS:

ADMINISTRATIVE SETTLEMENTS:

Chairman Capito:

“As I outlined in my opening statement, EPA and Congress worked together to resolve liability issues with Brownfield sites as a model for how we should work together on PFAS contamination. In that case, EPA relied on existing administrative tools to manage third-party contribution risk while Congress considered whether a statutory fix was warranted. The EPA has suggested it might take a similar approach, using settlement agreements to protect entities unintentionally swept into CERCLA liability. My question is, does the EPA’s Brownfields experience offer a useful precedent?”

Kate R. Bowers, Supervisory Attorney for the Congressional Research Service:

“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.”

PROVIDING DISPOSAL CERTAINTY:

Chairman Capito:

“Without clear federal PFAS disposal standards, landfills are refusing materials due to inconsistent acceptance criteria—we’ve already covered this in all of our statements—routine construction and lack of insurance coverage. Routine construction debris is now being hauled hundreds of miles—imagine that environmental impact—across state lines simply because hazardous waste facilities are the only ones who will accept this material. This policy failure is driving up costs, overwhelming limited hazardous waste capacity and generating unnecessary emissions from long-haul diesel trucks. What do you need to see from EPA’s forthcoming disposal guidance to better manage this pathway?”

Leah Pilconis, General Counsel for Associated General Contractors of America:

“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, Co-Chief Executive Officer for Clean Harbors:

“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.”

NEED FOR PERMANENT GUIDANCE:

Chairman Capito:

“What I hear bleeding through all of this, and what concerns me, is you hear that guidance was released in 2024. We know that guidance can change from administration to administration, and obviously it hasn’t been specific enough guidance because there’s still a lot of gray area there. So hopefully, working with you all, we can find something that EPA can go to in a very permanent way […] There’s a lot of people in this country that don’t want a “comfort letter” from the EPA, I can tell you that.

Click HERE to watch Chairman Capito’s questions.

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