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Addressing America’s PFAS issue cannot wait forever

'Polluter pays' should guide addressing PFAS contamination

Sen. Shelley Moore Capito, R-W.Va., writes that her legislation would ensure that the "polluter pays" to clean up PFAS.
Sen. Shelley Moore Capito, R-W.Va., writes that her legislation would ensure that the "polluter pays" to clean up PFAS. (Tom Williams/CQ Roll Call file photo)

This fall, Congress has an opportunity to address an issue that impacts the health and safety of many of our constituents. PFAS — commonly called “forever chemicals” since they do not degrade in the environment — have been found nationwide. We shouldn’t hesitate to deliver solutions that clean up and reduce risks posed by PFAS in a scientific, bipartisan, and responsible manner.

I’ve championed efforts on PFAS cleanups for years as West Virginia has borne the weight, and been a leader among the states, in documenting and addressing PFAS contamination. Most recently I offered a draft of bipartisan legislation alongside Senate Environment and Public Works Chairman Thomas R. Carper, D-Del., for public input. We received hundreds of comments from local and state government, industrial, utility, and environmental stakeholders, and the message repeated more than any other was this: The polluters should pay for the cleanup, not taxpayers or utility ratepayers.

The law that most clearly enshrines the “polluter pays” principle and will be essential to addressing PFAS pollution is the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). However, CERCLA, which was enacted more than 40 years ago, was designed to address one hazardous substance at a time and assumed contamination in specific sites. It was not written to address a challenge like PFAS, a group of thousands of chemicals that can be found in the environment almost anywhere you look.

Without getting too technical, CERCLA imposes broad legal liabilities that can impact nearly anyone who interacted with a regulated substance whether they knew they were doing so or not. That means activist lawyers can go after homeowners, businesses, local governments, and others even if they were unaware they had contamination on their property.

As the EPA begins the process of regulating the first PFAS chemicals under CERCLA, it can quickly devolve into quite the mess for folks who had nothing to with creating the pollution in the first place, especially since we’re dealing with substances as widespread and long-lasting as PFAS.

Across the nation, passive receivers such as clean water utilities and recyclers are tasked with the collection, management, treatment, and sustainable reuse of vast volumes of water and waste that may contain PFAS. Because of the breadth of liability under CERCLA, these entities and others, including volunteer fire departments, could be targeted with frivolous lawsuits just for providing the vital services that underpin our modern society.

Meanwhile, companies that manufactured or used PFAS in their products and reaped profits from their sale are often not covered by CERCLA, as they do not ultimately “dispose” of the substances.

All of this means that if Congress does not act, future regulation under CERCLA may lead to a wave of lawsuits that will raise taxes and utility rates on millions of Americans, while only enriching trial attorneys and allowing the actual polluters off the hook. Worse, this will do nothing to actually address the contamination and may even financially weaken those same passive receivers charged with doing that mitigation work.

The EPA has signaled its intent to employ its enforcement discretion under CERCLA to target polluters and safeguard utilities from this unjust outcome. While this is welcome, it does nothing about potential lawsuits and the legal uncertainty that follows.

Some attorneys groups, often with the support of environmental groups that have made a business of suing businesses and state and local governments, are calling on their allies in Congress to ignore the majority of comments we received on our draft legislation and reject commonsense proposals that would ensure the concept of “polluter pays” continues to apply as we address PFAS.

Targeted relief for passive receivers will protect Americans from unsustainable cost increases in vital services like drinking and wastewater treatment, recycling, and garbage collection caused by a tidal wave of CERCLA lawsuits.

As we provide these protections for consumers, the federal government must also define the scope of the problem and work with the private sector to invest in solutions to find, treat, and destroy PFAS for good, instead of passing the buck to future generations.

I am proud our draft legislation does just that, with a clear definition of PFAS and significant new investments to get these chemicals out of the environment.

If we care about protecting our families from the health and environmental threats of PFAS in our air, water, and soil, we must support a “polluter pays” model and develop real solutions that actually address contamination.

Together, we can strike the right balance that keeps our children and grandchildren safe, and does not slam American households already dealing with cost-of-living challenges with higher taxes and utility rates.

Sen. Shelley Moore Capito is a Republican from West Virginia who is the ranking member of the Environment and Public Works Committee.