On September 7, one of the hardest working environmental policy journalists in the nation, the brilliant Suzanne Yohannan, at the national environmental policy news outlet of record, the indispensable Inside EPA, reported that U.S. Senator Moore Capito, ranking member on the Environment and Public Works Committee, "is signaling support for providing water systems and other 'passive receivers' of PFAS pollution protections from Superfund liability." Ms. Yohannan's article provides insight into the basis for the Senator's position by quoting Peter Hoffman, the communications director for EPW Republicans: "Ranking Member Capito strongly supports PFAS passive receiver liability protection because she believes that polluters - not local water and wastewater systems, fire departments, farmers, airports, and landfills that did not manufacture or profit from PFAS chemicals - should bear the cost of PFAS cleanup.” We concur with this analysis, which then prompted us to think about how brownfielders could take up the funding gap resulting from the waiver. What we came up with was a "brownfields exemption" to CERCLA liability for parties that enter into a binding agreement with a state environmental agency to voluntarily remediate and redevelop PFAS impacted sites. Such an exemption would provide for (i) immunity from cost recovery and contribution claims; (ii) a block on NPL status for sites being cleaned up under a state brownfields program; (iii) immunity for lenders who hold indicia of ownership in, or have foreclosed on, a PFAS impacted facility; and (iv) immunity from citizen suits under RCRA. The policy reasons supporting such an amendment are compelling. Onboarding PFAS impaired sites to CERCLA/RCRA without a safe harbor from litigation for parties volunteering to spend enormous sums of money and amounts of time to overcome uncommonly high financial hurdles, technical complexities, and regulatory barriers is an unnecessary roadblock to reuse, revitalization, and healthier, stronger communities. If codified, this proposed exemption would likely result in massive outlays of private capital to willingly take on the burden of responding to a public health crisis wrapped in an economic crisis wrapped in a crisis of confidence. Unlike the waiver for passive receivers, which takes funding sources from multiple industry sectors off the board entirely, this exemption taps into a rich vein of private sector actors who would be more than happy to roll their sleeves up and get to work provided they can do so outside of the federal enforcement/litigation ecosystem. We believe this approach would be a wonderful counterpoint to the blanket exemptions for passive receivers, one that would actually provide for proactive cleanup by parties with absolutely no causal connection to any PFAS pollution. Our suggested version of a CERCLA brownfields liability exemption, originally submitted to EPW on July 3, 2023, as comments to the draft PFAS bill, is embedded below.
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1moLove that you are doing this Seth G. Kagan, Esq. I am so disturbed by all these chemicals in our food supply, water and cooking / food utensils. Thanks for fighting the good fight!