House subcommittee splits over Superfund liability after EPA lists PFOA, PFOS

The Energy and Commerce Subcommittee on Environment met to examine EPA's 2024 designation of two PFAS chemicals, PFOA and PFOS, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly called Superfund. Chair opening remarks said the hearing would probe whether liability concerns are deterring brownfield redevelopment and whether statutory changes are needed.

Witnesses presented sharply contrasting views. Susan Bodine, a former EPA assistant administrator who has worked both at the agency and on Capitol Hill, told members that Superfund's liability framework is "not about polluter pays" and "ensnares parties with little to no responsibility for contamination," arguing that CERCLA's strict, joint and several, retroactive liability and the ubiquity of PFAS create unique legal and transaction costs. Bodine emphasized that EPA's enforcement-discretion memos "apply only to EPA" and therefore do not block third-party lawsuits that can draw in passive receivers.

Lawrence Falby, chair of the International Council of Shopping Centers' environmental and land use policy committee, said the designation has chilled transactions for brownfields and infill redevelopment. Falby described situations in which clean Phase I site assessments were followed by buyer demands for PFAS testing, risking deal collapses. He urged Congress to consider a narrowly tailored statutory passive-receiver exemption so property owners who did not cause PFAS releases can redevelop sites without facing open-ended liability.

Tracy Meehan of the American Water Works Association described the practical costs and operational challenges for utilities. Meehan told the panel that meeting EPA's 4-parts-per-trillion drinking-water standard can require large capital outlays and produce treatment residuals that must be managed safely; he cited a Fairfax Water example estimating roughly $400 million in capital to move from 5 ppt to 4 ppt and warned that disposal options and ongoing operation-and-maintenance costs could be substantial.

Ranking members and several Democrats warned that exemptions that shield entities from CERCLA liability risk undermining accountability and shifting cleanup costs to taxpayers or ratepayers. Representative Menendez and others said exemptions would weaken the ability to hold manufacturers and other polluters responsible. Emily Donovan, a community leader from Wilmington, N.C., testified that residents in the Cape Fear region have experienced longstanding contamination and urged stronger upstream controls and class-based actions, including use of RCRA and TSCA tools to prevent future contamination.

Members and witnesses also discussed technical matters: the variability and limitations of PFAS testing at parts-per-trillion levels, the differences between risk assessment and risk management, and the limited reach of EPA's enforcement discretion when private litigants can still file suits. Several witnesses recommended statutory or regulatory steps short of broad carve-outs, such as strengthening bona fide prospective purchaser (BFPP) protections, clarifying burdens of proof, and creating narrowly tailored passive-receiver protections that preserve remedies against true polluters.

The subcommittee did not take any vote. Members may submit additional questions for the record within 10 business days, and committee staff entered a set of documents into the hearing record by unanimous consent. The hearing adjourned after rounds of questioning and discussion of technical and policy trade-offs.