▶ 0:11:33Subcommittee on Environment will come to order. The chair recognizes himself for five minutes for an opening statement. Welcome to today's hearing before the subcommittee on environment. This year, we've revisited some of our country's most important environmental laws and confronted emerging challenges in protecting our environment and promoting a regulatory climate that encourages innovation and economic growth.
▶ 0:11:58Among other things, we've identified shortcomings with the administration of the Toxic Substance Control Act that delay newer, safer chemistries from reaching consumers, explored opportunities to revitalize brownfield sites for crucial infrastructure projects, evaluated the state of technologies to improve our recycling systems, and passed common sense clear air act reforms.
▶ 0:12:21Today we're examining EPA's decision last year to designate two POS chemistries POA and P FOS as hazardous substance under the comprehensive environmental response compensation and liability act also known as circula or the super fund law. Circle was enacted in 1980 to facilitate the cleanup of the most contaminated sites around the country and to establish a scheme to hold liable for cleanup costs the parties responsible for that contamination.
▶ 0:12:52Super fund imposes strict and joint several liability on parties. In other words, a responsible party could be responsible for the entire cost to clean up a contaminated site even if its contribution to the pollution was minimal. Circle excludes exemptions as well as defenses to liability for certain parties such as bonafide prospective purchasers and innocent land owners as they are referred to.
▶ 0:13:15However, in the context of the hazardous substance designations for POA and POS, there are concerns that existing exemptions and defenses may not adequately protect a class of parties commonly known as passive receivers who did not manufacture or use P4 or POS, but may have acquired, used, or disposed of material containing these chemicals. Today, we will examine the impacts of potential liability for POS contamination on these entities.
▶ 0:13:44Congress has clarified and expanded liability protections before, such as by passing the Small Business Liability Relief and Brownfields Revitalization Act of 2002. We will consider how concerns about POS liability may deter a range of economic activities and whether changes to CIRCA or other legislative action are needed.
▶ 0:14:05Additionally, at our March hearing on reauthorization of of the Environmental Protection AY's brownfields program, we discussed the tremendous potential of the estimated 450,000 brownfield sites in our country for housing important infrastructure such as power generation, semiconductor manufacturing facilities, and data centers. We hope to examine whether concerns about liability for PAS hinder the redevelopment of these sites.
▶ 0:14:31To this end, we welcome Susan Boddine, who previously served as assistant administrator for the Office of Solid Waste and Emergency Response at EPA during the George W. Bush administration and then as assistant administrator for the Office of Enforcement and Compliance Assurance in the first Trump administration, in addition to senior staff roles in both the House and Senate. We're also joined by Lawrence Falby, chair of the International Council of Shopping Centers Environmental and Land Use Policy Committee. Mr.
▶ 0:14:58Falby will share his experience on how potential POS contamination impacts real estate transactions for those seeking to reuse those sites. Next, Emily Donovan joins us as co-founder of Clean Cape Fear, a grassroots community advocacy organization focused on the presence and impact of certain PIFOS in communities. We also welcome Tracy Mian who represents the American Waterworks Association and served as EPA assistant administrator water also during the George W. Bush administration.
▶ 0:15:27I thank all of our members and witnesses for being here and I look forward to today's to today's discussion.
▶ 0:16:18The chair now recognizes the ranking member of the subcommittee, The gentleman from New York 5 minutes for an opening statement.
▶ 0:16:24Thank you, Mr. Chair. Perr and poly floro alkal substances or pas are a large class of chemicals commonly used in firefighting foams, food packaging, non-stick cookware, and water-resistant fabrics. These chemicals are remarkably persistent in the environment and incredibly toxic and dangerous to human health, even at very small concentration levels. Fifas exposure has been linked to kidney disease, thyroid dysfunction, and various forms of cancer.
▶ 0:16:53Almost all Americans have had some FIFAS exposure, and drinking water contaminations have been found in many communities across our country. This includes the town of Husk Falls in New York's 20th congressional district that I represent. It has been nearly a decade since PFOA was detected in Husk Falls, which helped sound the alarm for many others to test their water. Since that time, this committee has held numerous hearings in examining PIFAs.
▶ 0:17:20Miss Donovan, who is testifying today, also testified at our initial hearing more than seven years ago. In years since that hearing, there has been increased public awareness, improved scientific understanding, significant funding for remediation included in the infrastructure investment and jobs act, and major regulatory actions taken at the state and federal levels to address PAS risks and hold polluters accountable.
▶ 0:17:45EPA released a PAS action plan during the first Trump administration and a PAS strategic roadmap during the Biden administration. Actions were taken across program offices and in in under multiple en environmental laws including the safe drinking water act, the clean water act, tusca and circla. Many of these actions have f have focused on the two long chains of pasoa and pifos.
▶ 0:18:13There are certainly the these are certainly the best known pas but domestic manufacturer of these specific chemicals largely stopped years ago. Real and ongoing risks for future exposure will come as companies substitute these PIOS with dangerous replacements such as Gen X. After many years of sounding the alarm and developing plans, we're really only now just beginning to see a federal regulatory response take effect.
▶ 0:18:38Headlined by drinking water standards and a hazardous substance designation being finalized for POA and PFOS during the Biden administration. But we have also seen some troubling actions taken this year by the Trump EPA to undo past progress, including approving pesticides containing POAS, eliminating drink drinking water standards for four short chain POS, including Gen X, delaying drinking water compliance deadlines for POA and POS, and limiting
▶ 0:19:08PAS reporting requirements under TUSCa. To its credit, to date, the Trump EPA has left in place the hazardous substance designation of PIFOA and POS. This circla listing is incredibly important. It requires the reporting of releases and compels those responsible for contaminations to remediate. It ensures that polluters are held responsible.
▶ 0:19:32Regarding the specific subject of today's hearing, I want to be clear that I do have some sympathies for water systems and other passive receivers, entities that receive media containing PIFA but do not produce or use it themselves if they are taking all the necessary steps to act responsibly and indeed protect the public. I do believe everyone wants to do the right thing and keep people safe and healthy.
▶ 0:19:57But groups have been asking this committee for a circla exemption for years, long before the hazardous substance designation was even initiated by EPA. And I have seen very little evidence that an exemption is needed at this time. Before we start preemptively creating loopholes in our environmental laws, we must make certain that we are addressing a real problem.
▶ 0:20:19EPA has a history of developing enforcement discretion policies and was done in this case and I believe we should wait and see if there is a systematic failure of this approach before Congress grants any exemptions. After a decade of slow and deliberate action, we're now only beginning to get our arms around the challenge to prevent PIFA from entering the environment in the future and to remed it remediate it where it exists.
▶ 0:20:47We are still in the early days of implementing a comprehensive regulatory strategy that protects our communities from the damage PIA are causing and I cannot support any effort that jeopardizes or undermines the progress that has been made to date whether that is by the administration or Congress. So with that I thank you Mr. Chair. I look forward to today's discussion. Welcome the uh panel panelist and yield back.
▶ 0:21:12Chair now recognizes the gentleman uh from Kentucky, the chairman of the full committee for five minutes for an opening statement.
▶ 0:21:19Thank you, Chairman Palmer, for convening this final committee hearing of 2025. And the first session of the 119th Congress is coming to a close and I'm proud of the work we've done to facilitate the delivery of more affordable energy to families across the country, pair back burdensome regulations, and foster domestic innovation and manufacturing. I absolutely believe we can have a thriving economy while simultaneously protecting our environment.
▶ 0:21:45To that end, we must consider whether our current environmental laws are fit for the purpose to meet today's increasingly complex world. The comprehensive environmental response compensation liability act circa also known as the super fund law was enacted in 1980 to establish a framework for assigning liability for the cost of cleaning up contaminated sites.
▶ 0:22:08Though the super fund law has been amended several times today, we will consider whether it works to facilitate the cleanup of land contaminated by two PAS chemicals that EP EPA has designated as hazardous substances and how liability concerns may impact water utilities, farmers, land developers, waste management, and other sectors of our economy.
▶ 0:22:29Additionally, we will assess what additional guidance may be needed for parties who want to be good stewards of the environment and follow the law but unsure how to do so in the context of c contamination from these two PAS chemicals. I am confident we can rise to the challenge and avoid making decisions driven by fear and misinformation. The word PAS can trigger concern because it is important that we acknowledge that the PAS family contains thousands of different chemistries.
▶ 0:22:58many of which are found in electronics, medical devices, infrastructure materials, safety equipment, and other essential uses that are not believed to pose a risk. Understanding this will help us focus our efforts on limiting the harms associated with specific substances most closely linked with adverse health environmental impacts. I look forward to hearing from our witnesses today. I appreciate you all for being with us and I know we're going to have a productive dialogue and I will yield back.
▶ 0:23:27Chair now recognizes Mr. Menendez who will be giving an opening statement on behalf of Mr. Palone, the ranking member of the full committee. The gentleman from New Jersey is recognized for five minutes. Thank you, Chairman. I support holding polluters accountable for the harm they cause the people we represent. So, I'm discouraged that my Republican colleagues are not centering this hearing around exposed communities who are bearing the brunt of PAS contamination and ensuring that we prevent further exposure to these toxic chemicals.
▶ 0:23:55Instead, the majority called today's hearing to discuss creating new liability shields under our nation's super fund law for corporate polluters. PAS chemicals are an urgent threat to public health. They are toxic, persistent, and have been found in our water, soil, and air, as well in products Americans use every day. Aptly referred to as forever chemicals, PAS have long been linked to cancers, infertility, impaired child development, and thyroid disease, among other harms.
▶ 0:24:23Each day we are finding PAS in more communities across the country and are learning about the health harms they face as a result of this exposure. Urgent action is needed to address widespread contamination and reduce our community's exposure to these dangerous chemicals. That is why I'm pleased that Emily Donovan is here today. Mrs. Donovan is a concerned mother, advocate, and community leader who has fought tirelessly to lift up the voices of her neighbors, including carrying the stories of those who tragically aren't with us anymore.
▶ 0:24:51She brings an important perspective to this hearing, the voice of a community in North Carolina that has been devastated by PAS contamination. The topic of today's hearing does little to offer solutions to communities like Mrs. Donovan's. Rather, it leans into unfounded claims to bolster recent PAS deregulatory actions taken by administrator Zelden for corporate polluters and future exemptions requested by special interest.
▶ 0:25:14For example, since the super fund listings for PIOA and POS went into effect, opponents claimed they would lead to a flood of liability lawsuits against municipal entities have simply not materialized. There are existing tools to ensure downstream entities aren't held liable for upstream pollution so long as they properly manage hazardous substances and don't release PAS into the environment. Yet they continue to push a narrative of needing an exemption under super fund.
▶ 0:25:43Giving municipal entities such a carveout would remove a powerful incentive for responsible management of hazardous waste products and risk dangerous PAS releases into communities without consequence. I should note that these same entities like water utilities have a long history of following the law and managing dangerous super fun chemicals like arsenic, chromium, and lead safely and effectively as part of their everyday operations. There is no reason to suggest managing PAS would be any different.
▶ 0:26:11Exempting parties from circular liability will let those entities off the hook for removing PAS from their own systems, responsibly, handling PAS waste, reducing PAS contamination for their customers, and holding polluters accountable for the harm they cause. If we are serious about addressing PAS issues in this country, we must examine how to expedite the cleanup of toxic PAS chemicals while simultaneously working to prevent new exposures to these dangerous substances.
▶ 0:26:39Unfortunately, this is not what Republicans in the Trump administration are doing. Instead, the administration has worked to roll back and decay health protective drinking water standards and limit PAS reporting requirements, effectively leaving the EPA and communities in the dark. Under Democratic leadership, the House passed the bipartisan PAS Action Act, which provided real solutions to some of our pressing PAS issues.
▶ 0:27:01It authorizes critical resources to water systems and communities grappling with contamination and stems the tide of PAS chemicals into the environment. The legislation is centered on the science and the real life experience of communities like Mrs. Donovan's. Discussion to weaken PAS regulations, however, misses the mark and only serves to harm workers, families, and children. Americans are already struggling with rising health care cost and loss of access to life-saving care.
▶ 0:27:28Deregulation will make the PAS problem worse, breaking the promises we made to communities like Mrs. Donovan's. The companies that knew for years that they were pumping dangerous PAS into local towns must be held accountable. Creating a litany of carveouts from critical environmental protection will hamstring our ability to do just that. Our constituents and communities deserve action to solve this PAS crisis once and for all. Thank you and I yield back.
▶ 0:27:52This concludes member opening statements. The chair would like to remind members that pursuant to the committee rules, all members opening statements will be made part of the record. We want to thank our witnesses for being here today and for taking time to testify before the subcommittee. The witnesses will have the opportunity to give an opening statement followed by a round of questions from the members. Our witnesses for today are Susan Boddine, uh earth and water law, Lawrence W.
▶ 0:28:20Falby, chair, International Council of Shopping Centers, Environmental and Land Use Policy Committee, uh Mr. Tracy Mian, Executive Director of Government Affairs, American Waterworks Association, and Miss Emily Donovan, co-founder Clean Cape Fear. Appreciate you being here today. I now recognize Miss Boddine for five minutes to give an opening statement.
▶ 0:28:44Thank you uh Chairman Palmer and ranking member Tonkco for inviting me to speak today on the subject matter of this hearing examining the impact of EPA circla designation for two PAS chemistries and potential policy responses to super fund liability concerns. Um, as was mentioned, I believe by chairman Palmer, I have uh worked on PAS issues.
▶ 0:29:08I've worked on super fund issues uh both uh enforcing super fund, working in EPA's office of enforcement, managing the super fund program while working in EPA's what is now the office of land and emergency management, but um and for the longest period of time actually working on the hill.
▶ 0:29:30Uh I was here working in the transportation infrastructure committee back in the 90s when Congress was trying to do super fund reform and we were working closely with energy and commerce committee because the committee share jurisdiction trying to make the program more fair um because it is well known that super fund is a very draconian statute that sweeps in a lot of parties including parties that I've heard members on both sides of the aisle say uh you know should not be held liable.
▶ 0:30:00uh and it's with that uh background and um knowledge base that that I come here to talk to you today. My goal is to help the committee the subcommittee understand what are the implications and to offer some considerations if you can as you consider a response. So I'm my my written testimony and I'll summarize it makes five points.
▶ 0:30:28I mean the first is that the super fund liability system it's not about polluter pays. It's about it in snares parties with little to no responsibility for It um it's a way to expeditiously it's a it's a way to to get cleanup done, but it is not based on causation. It's not based on who is actually responsible.
▶ 0:30:54I've heard um u ranking member Tonkco talk about people who didn't produce it or use it. I heard Congressman Menendez talk about people who caused contamination and characterize those people as polluters. The statute sweeps in far more people than the entities that you just described as ones that you would like to keep liable. And in doing so, it creates enormous transaction costs.
▶ 0:31:18And I go into too much detail, I'm sure, in my written statement about the co about those costs and various entities like GAO, uh, Rand Corporation, etc. who have quantified those costs. Um, this is not cost spent on cleanup. This is cost spent on lawyers fighting about liability. The consequences for PIO and POS are different.
▶ 0:31:42I've heard the same statements from environmental groups saying why is this any different from other hazardous substances the EPA can manage that the courts can manage that the reason it's different is because PAS POA and POS are ubiquitous in the and when you add that to the fact that EPA back in 2024 put out two uh risk assessments that said that basically if you can detect it there's a risk So
▶ 0:32:13there are these risk assessments out there. They're not risk management tools. They're simply just a risk assessment saying, you know, that incredibly low levels may may be risky. Now, my testimony talks about that as well. You know, whether or not those incredibly low levels are are accurate or whether there should be higher levels.
▶ 0:32:34Nonetheless, just know that because of those incredibly levels and the fact that it's found everywhere, the designation of POPROS creates a different situation than you might find with other hazardous substances, even those that are ubiquitous. I mean, lead is ubiquitous, but lead we have we have levels that we know are are management levels, levels that you would clean up.
▶ 0:32:58I als I also want to address um I've heard members say well isn't EPA's enforcement discretion the answer to everything and the and the answer is no because it only applies to EPA itself and uh because some of the data again back working on super fund for years uh EPA only brings about a third of the cases and so the vast majority of litigation out there is brought by parties other than EPA.
▶ 0:33:25EP Congress also has a long history of codifying and creating exemptions based on EPA's enforcement discretion. So I would encourage you and I talk about this in my testimony to look at EPA's enforcement discretion equitable principles and decide, you know, do you agree with those and would you want to codify that? And then finally, and I know I'm out of town now, the um you don't want to create an unfair situation where somebody's left off is off the hook and someone downstream is a victim. That's what the trust fund is for.
▶ 0:33:55And I put numbers in my written testimony about what the levels of the super fund trust fund are and the fact that that money is available to EPA to do cleanup to address situations where you where you've identified a a real Thank you very much. I'll be happy to answer questions.
▶ 0:34:14Chair now recognizes Mr. Mian for five minutes for his opening statement.
▶ 0:34:19Thank you, Mr. Chairman. And thank you also of inviting us to testimony.
▶ 0:34:27Thank you again for inviting us to uh address uh the committee. Uh the AWA is made up of 43,000 individual members uh and excuse me 50,000 individual members representing many disciplines from finance, engineering, science, uh advocates, everyone, anyone involved either with the utility water utility sector are the um are supporting that sector. 80% of the population of North America is served by our membership.
▶ 0:34:57Um we uh uh we include also among our membership of what the water utilities also many of those are uh combined systems wastewater about 40% do both wastewater and drinking water some do storm water too um anyway we appreciate this invitation this issue of PAS is of course a challenging one and um I appreciated the overview of some of the legal points that Susan Boddine made um we do not our utility members do
▶ 0:35:28not, as was pointed out by the chairman, manufacture, use or profit from PAS. Uh, and in fact, pursuant to the new regulations that EPA has uh promulgated, we're investing literally billions of dollars. And that is not an exaggeration because you need to include not just the capital investments, but the ongoing ON&M costs that honestly uh run in perpetuity in many cases or at least as long as there's potency in the chemistry.
▶ 0:35:55Uh, paradoxically, these robust investments that utilities are making create the possible liability under circla or super fund. As as Susan uh noted, uh we use technologies that have been approved by EPA include granular activated carbon which can be reactivated and replenished but eventually has to be do disposed of also ion exchange and reverse osmosis.
▶ 0:36:21All of these best available technologies uh generate residuals which is the waste product from the treatment on the wastewater side. They're called bioolids and they use different technologies. But again, these are massive waste streams and a lot of it's been land applied or sent to municipal landfills.
▶ 0:36:39Uh but now with the nature of a persistent bio uh well persistent toxic like the PAS compounds uh you concentrate the the toxicity and then we have to manage and dispose these res residuals in light of the the uh the uh uh super fund designation as a hazardous substance as hazardous substance.
▶ 0:37:00So instead of going to municipal landfill, you might want to be looking now at a rickrris certified landfill or an incinerator or or but other options are going to be either you're going to have more expense and and fewer options. Uh and again, not only is super fund strict joint several, it is retroactive liability. And so uh you could have a super fund site that is uh uh the result of decades of previous uh uh what was previously legal disposal practices.
▶ 0:37:29Um again, circla as Susan eloquently described has a wide liability net. She used the term draconian. Uh it's a it's a term I might also approve of again strict joint several and retroactive liability. And while the intent of CIRLA was to hold polluters uh responsible, poller pays principle uh with the ability of a potentially responsible party and there's many of those out there and there's four different categories in section 107.
▶ 0:37:59you can check the the briefing paper you got. Uh there's at least two maybe three opportunities for utilities to be uh swept up in the liability net brought in not necessarily by EPA who's always avoided uh bringing in municipalities but uh other potential responsible parties and there's examples of that uh well I I'll go into that later if you have questions.
▶ 0:38:21Uh so let us just say that uh we approved the uh statement recently by EPA administrator Zeldon that uh EPA will need new statutory authority uh and language from Congress to fully address the equitable concerns of passive receiver liability.
▶ 0:38:38And we would urge uh Congress to uh at least this committee and the other members of Congress to take a careful look uh at some of the legislation that's been proposed uh and on the House side in particular um uh specifically the HR 1267 the water systems PAS liability act which uh we think is a reasonable approach maybe not the only one but one worth taking a look at.
▶ 0:39:04Um there's many other things to say about this issue and be happy to answer your questions in the followup. Thanks again.
▶ 0:39:11Chair now recognizes Miss Donovan for five minutes for her testimony.
▶ 0:39:18Thank you all for the opportunity to testify. My name is Emily Donovan and I'm co-founder of Clean Capefar, a grassroots community group based in Wilmington, North Carolina and I serve on the leadership team of the National PAS Contamination Coalition representing more than 42 community groups in 26 states. Today I am here on behalf of half a million people in southeastern North Carolina who are living with extreme PAS contamination in our air, soil, drinking water, food supply, and now even seafoam along our beaches.
▶ 0:39:47This is not a hypothetical risk. It is our daily reality. I testified before this very committee seven years ago. I explained in great detail what happened to my area known for its pristine beaches and beautiful waterways. DuPont and Kamores used the Capefir region as a PAS sacrifice zone for nearly half a century without our knowledge or consent.
▶ 0:40:07Our contamination crisis was so bad the United Nations Human Rights Council investigated our area and called out DuPont Kamor's federal and state regulators for failing to stop business related human rights abuses. Eight years ago, we learned that Gen X and other PAS were present at extreme levels in our tap water. There were no regulations, no monitoring mechanisms, nothing to warn us. We immediately realized we were not alone. Other communities just like ours were also dealing with similar devastation.
▶ 0:40:36So, we partnered with them and flew to DC regularly to demand the EPA establish first ever federal drinking water standards for PAS and make sure the poller paid for the cleanup. Now, we are watching those protections get weakened by this new administration.
▶ 0:40:51We fought hard for those federal drinking water standards because we learned without enforceable standards, our public utilities could look us, the rateayers, in the eyes and legally say the tap water meets or exceeds all state and federal guidelines because there were no state and federal guidelines. At the time, it felt like our local leaders were more concerned with municipal liabilities and the economy in very vague terms rather than protecting our public health.
▶ 0:41:17Wilmington's water utility knew it had a PAS problem for a full year before the public became aware. While Kamores is by far my community's biggest PAS poller, there is significant PAS pollution from a bunch of textile companies upriver from Kimors. Unfortunately, we constantly hear stories about how PAS polluters are important employers in our town, often gazing gaining over outsized influence over the town's water system.
▶ 0:41:42So much so, places like Burlington, North Carolina, failed to hold themselves internally accountable for pre-treatment programs. We've witnessed too often, especially in small towns, the water utilities often function as industry and developer paradises instead of true stewards of public health.
▶ 0:41:59I'm hearing a lot of people talking about how costly cleanup for PFOA and PFOS will be, but no one is remotely talking about an immediate moratorum or ban on all PAS because the cleanup and liability is so costly. I believe lawmakers and regulators have not done far enough. The entire class of PAS should be designated as hazardous waste under the Resource Conservation Recovery Act.
▶ 0:42:23Last month, new research confirmed that short- chain PAS like Gen X are now dominant in municipal waste water waste streams. Yet, here we are debating whether to weaken accountability for two PAS that haven't been in commercial use for over a decade. We have a true public health problem that no one in this room created, but all of us are required to solve. In the eight years I have been coming to DC begging for solutions, I have never seen the water utility lobby group stand beside us demanding better source protections.
▶ 0:42:53We are already paying for this cleanup. I raised my children on this water because I thought it was good for them because water should be good for children. I watched my husband survive a brain tumor. I also buried friends my age who shared their illnesses with this very room seven years ago. Some of us don't have the luxury of time to keep redirecting the focus away from real solutions. Please do not let Tom, Amy, Chris, and Sarah die in vain. Please consider those who are already paying the ultimate price.
▶ 0:43:21families like my friend Cara Keenan who is watching right now. She's a decorated veteran and a young breast cancer survivor. Her mom Margaret has a rare blood cancer with no cure that has progressed. Her stepdad Bob had bladder cancer and his leukemia recently progressed, requiring treatments twice a week at a facility two hours from home. No one in their small tight-knit family was genetically predisposed or had prior medical histories. The only thing they all shared in common was a zip code and a severely PAS contaminated community.
▶ 0:43:50Please don't allow their suffering to be in vain. If time allows, I will say this. My faith teaches me that we are called to be good stewards over all of God's creation. When we fail to do this, we are actively breaking our covenant relationship with God. The best time to solve this PAS crisis was 50 years ago, but the second best time is right now. Do not weaken Circula. Do not grant exemptions or permit shields. Stand with PAS contaminated communities. Stand with my community. You have the power to protect human life. Please use it. Thank
▶ 0:44:22Chair now recognizes Mr. FBI for five minutes for his testimony.
▶ 0:44:28Chairman Guthrie, Subcommittee Chairman Palmer, Ranking Member Palone, Subcommittee Ranking Member Tonko, and members of the subcommittee. Thank you for the opportunity to testify today. My name is Lawrence Falby. I'm a principal at the international law firm Miller Canfield in Chicago. I have been an environmental attorney in private practice for over 30 years. I'm appearing today as chair of the International Council of Shopping Centers Environmental Policy and Land Use Subcommittee.
▶ 0:44:54The testimony and viewpoints discussed today are my own and not attributable to my law firm or our clients. ICS represents owners, developers, lenders, and operators of retail and mixeduse properties that anchor local economies in every congressional district. For the past several years, our committee has focused on the growing challenges that PFAS posed to commercial real estate redevelopment and community reinvestment.
▶ 0:45:18POS per and polyfloro alkal substances are a large class of chemicals that have been used widely for decades because of their unique properties. Those properties also make them persistent in the environment and extraordinarily difficult and expensive to remediate and investigate. Today, PAS are considered harmful at extremely low levels down to parts per trillion and they are now detectable almost everywhere.
▶ 0:45:41In 2024, EPA finalized its decision to designate two POS compounds POA and POS as hazardous substances under circa also known as super fund from commercial real estate. The impact has been immediate and chilling. CIRLA is a strict joint and several retroactive liability statute. It was designed to make polluters pay for legacy contamination at significantly contaminated sites like Love Canal.
▶ 0:46:07But when that framework is applied to chemicals that are ubiquitous, migrate easily, are deemed harmful at minute levels, and often detected without a clear on-site source, the result is that passive property owners who did nothing to cause contamination are ins snared by circular liability. The problem is compounded during real estate transactions. Environmental due diligence typically begins with a phase one environmental site assessment.
▶ 0:46:32Now that POA and POS are circular hazardous substances, their potential presence must be evaluated. If POS is identified as a recognized environmental condition, a deal can stall or die even before sampling begins. Buyers, sellers, lenders, and insurers fear that investigation and remediation costs could exceed the value of the property itself, particularly when cleanup standards are inconsistent or undefined.
▶ 0:46:57The result is frozen redevelopment, stalled projects, and ballooning costs, especially on brownfield and infill sites the communities want redeveloped. EPA acknowledged this risk in its non-binding POS in uh enforcement discretion policy. In that policy, EPA states it does not intend to pursue enforcement against certain secondary uh parties. The policy does not protect property owners from third-party contribution lawsuits. It does not provide certainty to the markets.
▶ 0:47:26Existing circular defenses, including the bonafide perspective purchaser defense, also fall short. BFP protections are complex, uncertain, self-certifying, and easily lost. Many t longtime property owners are categorically ineligible and no owner ever knows whether the defense will succeed until tested in litigation years later and at great expense. ICSE supports science-based PAS regulations, protection of drinking water, and holding true polluters accountable.
▶ 0:47:57What we do not support is a system that discourages investment and places unlimited liability on parties that did not release POS. Inconsistent approaches to POS continue to hobble and confuse longtime successful EPA programs like the Brownfield program. Because of EPA's recent announcement on brownfield applicants certifying their lack of liability for PAS on brownfield sites, this causes even more uncertainty in a program that is relied upon by the commercial real estate sector.
▶ 0:48:24ICSE asked Congress to reaffirm three simple principles. First, polluters should pay, not passive land owners. Second, clean drinking water must be protected. Third, brown fields and infill redevelopment, particularly housing, should be encouraged, not penalized. To achieve those goals, we recommend Congress create statutory circle liability protection for passive receivers.
▶ 0:48:48There is clear precedent in circa, including the secured creditor exemption for narrowly tailored protections that preserve accountability and market certainty. ICs and its members stand ready to work with Congress, EPA, states, and communities to remediate PAS responsibly and protect public health without undermining the redevelopment that fuels local jobs, tax bases, and housing supply. Thank you for the opportunity to testify. I look forward to answering your question questions.
▶ 0:49:15I ask that my statement and testimony be included in the record, and I yield back my 10 seconds.
▶ 0:49:22I thank the witnesses um for their testimony. The chair now recognizes the chairman of the full committee, Mr. Guthrie, for five minutes for his questions.
▶ 0:49:33Thank you, uh, Mr. Chair. I appreciate the recognition. Uh, so, Mr. Mian, um, as we have heard today, the super fund law is based on the poller pays principle, but the law may be a bad fit for dealing with PAS contamination. Can you speak to how drinking water utilities remove PAS chemicals and are rate payers at risk of having to pay increased rates because of the cost of super fund litigation stemming from the EPA designation of POS and P FOA as hazardous substances?
▶ 0:50:07Thank you. Um clearly uh at least according to our lights the costs are uh very great in terms of treating and and disposing of uh PAS uh and getting it out of the water system. I'll give you just a concrete example. Fairfax water right across the river uh has got is uh has levels at five parts per trillion. The standards four parts per trillion.
▶ 0:50:31for them to get down from five parts per trillion to four parts per trillion, they're going to spend $400 million for capital investment. And beyond that, and this is a point I made earlier, 18% of their ongoing O andM costs are going to be consumed uh running and maintaining that system. Uh that's one anecdote, but u our analysis basically and and I I don't want to beat this to death, but you know, we view the cost at about triple what EPA did.
▶ 0:50:57And so, uh, whether you whether you buy EPA's number, our number, they're going to be huge and the impact's even going to be greater the smaller system. Fairfax water is a fairly welloff uh well-healed system and a well-run one. Uh, they'll get through it and they'll handle it.
▶ 0:51:12So, the costs are going to be Well, what's the cost benefit? Is the benefits going to be huge, too?
▶ 0:51:16I'm sorry.
▶ 0:51:17Are the benefits marginal or are they going to be hu product or
▶ 0:51:23or are the benefits marginal anyway? Well, in terms of again u getting into our we did 85 pages of comments, but if you want to get into the benefit cost analysis, um we we thought that four parts per trillion didn't meet a positive benefit cost ratio. We think when you get around 10 parts per trillion, you're okay at least in benefit cost and you can argue and then you look at the international comparisons, wide variety of standards. So, uh what's the intelligible principle by which you set the standard? We think benefit cost.
▶ 0:51:52So, so you're you're saying that you pay far more money than going go from 10 to four parts per
▶ 0:51:59Costs far more than the So, let me go to
▶ 0:52:01it's huge.
▶ 0:52:02Miss Bodine, u in your testimony, you discussed how the super fund trust fund must be available to help clean up the sites contaminated by PAS. What is the significance that EPA designated these two specific PAS chemicals out of the thousands of PAS chemicals as hazardous substances? And does this mean that all PASS are danger to public health and
▶ 0:52:22I don't know. I read that fast. Did you get it all? I hope so.
▶ 0:52:25Couple questions there. So, um, under without the super fund designation, without saying that PO and POS are hazardous substances, EPA still has the authority to address releases of PO and PAFAS using their own funding, using the super fund trust fund dollars because they consider them pollutants and contaminants.
▶ 0:52:46and EPA is allowed to say, "We think this pollutant and contaminant presents an imminent substantial danger in this situation and therefore we're going to use our own money, come in and address it." EPA hasn't been doing that, but they have that authority. Uh, by by listing it, then EPA can sue people instead or to the point of of the other witnesses, other people can then bring lawsuits also.
▶ 0:53:13Um and I'm sorry the second half of your was I want to switch to one more. So thanks. Uh so Mr. Fi Falby um in your testimony you talked about EPA enforcement discretion policy and super fund defenses do not adequately address concerns property developers may have. So in in my area we have data centers and things that are coming and people are really really concerned and fairly about good farmland being used up for this.
▶ 0:53:41And so the sites are industrial sites if we but we got to make sure they're safe. We got to make sure they're clean. We got to make sure people can use them. But how could Congress improve the liability defenses in the existing super fund law to address these concerns so these kind of brownfield sites can be developed?
▶ 0:53:55Yes, thank you for the question, Chairman Guthrie. Um, I think as I've testified, we're what we're looking for is a passive receiver exception that uh addresses uh people or entities that did not pollute using PAS. Simply owning property under CIRCA at this point for POS and POA as circa hazardous substances invokes that liability.
▶ 0:54:14And the reason why the enforcement discretion policy and some of the existing defenses in circla are not sufficient is because uh for the enforcement discretion policy as I think was already mentioned, it is only applicable to EPA. it does not uh bar third-party liability lawsuits and that causes uncertainty in the marketplace and that makes it very difficult for redevelopment to occur with the bonafide perspective purchaser defense. There are other issues with that. There has to be a transaction involved.
▶ 0:54:41You have to have bought the property after January 11th, 2002, which is when the BFP came into
▶ 0:54:47My time is expired though, so I appreciate your answer. We'll get more of it later and I will yield back to my friend from Alabama.
▶ 0:54:52Gentlemen yields. Chair now recognizes the ranking member, Mr. Tonko, for five minutes for his questions.
▶ 0:54:59Thank you, Mr. Chair. Miss Donovan, once again, welcome back to the subcommittee. I appreciate your passionate appeal to this group. Um, I don't expect you to have followed all of our activities since you last testified, but one issue that has been coming up recently is discussion around reauthorizing TUSCa. Now, there are industry groups that have been critical of how the Lenberg Act changed Tusca's new chemicals program.
▶ 0:55:24They argue that long delays and regulatory hurdles are disincentivizing innovative new chemicals from coming onto the market and supplanting much more dangerous chemicals already in use. I think what has happened to you and your community is an important cautionary tale that we cannot just assume that a new chemical replacing an existing known to be harmful chemical will truly protect Americans.
▶ 0:55:50So, Miss Donovan, can you please explain what is Gen X and how is it different than POA and POS which are the older longchain
▶ 0:56:01Sure. Thank you for that question. Um so Gen X is the commercial replacement to PFOA that DuPont developed and when um it was tested it showed to be nearly as toxic as PFOA. So the EPA said you can make it but you can't release it into the environment. Um the reason why we ended up having extreme levels of Gen X in our tap water is because it was released as a byproduct.
▶ 0:56:26Um clearly these chemistries um are messy and are ending up everywhere. Not only are we dealing with the legacy contamination from PFOA and PFOS that are no longer in commercial use, but now we have all of these new PAS, 14,000 per the EPA. Um there was over 256 um unknown PAS in the waist streams of Kimors that was being dumped into my drinking water supply.
▶ 0:56:52But I really want to point out um everything that I'm hearing today, especially related to TUSCa, is um I have no idea why in the world we are allowing new uses for a class of chemicals that we don't have any proven safe disposal method for. This is like banning lead paint but then allowing lead laced crayons onto the market. It makes no sense. We are not solving this problem correctly.
▶ 0:57:18We are not talking about source control and banning and eliminating like other countries are doing right now. Europe has realized that the only way to to affordably get out of this crisis is to move away from this chemistry. And the important thing that did not happen with Gen X is that we did not find a green chemistry solution. And that's one thing that Congress could do.
▶ 0:57:42Congress could demand that any substitute to a known toxic chemical must meet green chemistry principles before they're ever allowed to make it into the market and be a viable substitute. Because when we if we're going to talk about the ability to have new retail space, we need to make sure that we actually have a workforce that can show up to work not sick or that can actually even afford to go shopping.
▶ 0:58:07Because like my friend Cara, she's spending 2 days a week driving 4 hours just to get treatment for her stepdad. That is not a quality of life and that are not resources that she's able to go shopping with.
▶ 0:58:21So I think it is fair to characterize the prevailing belief that shorter chain PAS present a lower risk than longchain PAS, but safer doesn't mean safe. Can you talk a little bit more about the consequences you have seen in your community due to Gen X exposure?
▶ 0:58:39Well, everything that I'm hearing about Gen X, and again, I am not a scientific expert on this, so you can fact check me, but everything that I'm hearing from the scientists are saying that Gen X is now turning out to be just as toxic. The only difference is Gen X doesn't bioaccumulate in the body nearly as much as PFOA did. So, you know, we have to really understand toxicity. Just because it doesn't bioaccumulate doesn't mean it's harmful.
▶ 0:59:05If you go out and drink every night over a over a decade or a lifetime, you're going to start to see some health effects. Even though the alcohol leaves your system in the matter of hours, we have strong regulations on pharmaceutical drugs. We have no regulations on these chemistries and the and the fact that they're sitting in our bodies for days and weeks. There was new research that just came out on ultrash short chain PAS showing up in the blood of Wilmington residents at the peak of our exposure. This is a massive problem that that requires a class-based solution.
▶ 0:59:36We are not talking about the current problem, the 21st century problem. We are talking about decades old problem.
▶ 0:59:44Well, today industry groups may suggest that we could develop a a chemical safer than Gen X if only manufacturers were not hampered by overly burdensome upfront reviews. So similarly, some people are calling for an expedited TUSCa approval process for new chemicals that may be important for building data centers, processing critical minerals and other national priorities. So um again, I appreciate your appearing before us today and uh I yield back, Mr.
▶ 1:00:11Gentleman yields. I now recognize myself for five minutes for questions. Mr. me and your written testimony, you state that circla was not designed for chemicals like POA or POS. Um I'd like for you to explain that a little bit, but I also want to know are there other laws already on the books that are better for addressing these?
▶ 1:00:33Well, u I think the ubiquity issue that Susan Boddine mentioned is really key. It is uh it's omniresent and uh uh and again uh the way the standard at the standard that's being set at least for the MCL under the safe drinking water act at four parts per trillion that will drive super fun cleanup standards.
▶ 1:00:52So when you add the uh the MCL with the ubiquity I I think you've got a real problem and of course the uh the range of uh potentially responsible parties is just explo going to explode including water and wastewater utilities. So I I think that that's sort of the key uh reality that we we we're facing in our sector.
▶ 1:01:13Um as to other uh uh laws, uh I I do agree with Miss Donovan that uh we need to look at source water protection at a strategic level, not just the safe drinking water act, which is at the end of the pipe and puts all the burden on the rateayers and the citizens of those communities. We need to the Lottenberg bill actually contemplated u looking at drinking water effects in the review of chemicals and we've seen very little of that uh effort in that office.
▶ 1:01:43Uh we don't we could have envir uh affluent guidelines under the clean water act targeting uh producers of uh uh of pasque uh compounds. Uh we're not seeing any action on that front. So I think there are other tools in the toolbox besides the safe drinking water act
▶ 1:02:00when you talk about this end of the line
▶ 1:02:02we talk about an affordability crisis in the country that covers practically everything we're using right now. U how will circle designation impact affordability for water utilities and their customers? Well, uh there are four categories of potentially responsible parties and as I say, I I I think it's fair to say at least two of them will will touch uh uh water and wastewater utilities, maybe even three depending on circumstances.
▶ 1:02:28So once you get dragged into litigation, you have several factors that come to bear u the underlying liability which might be small, but you certainly have the litigation costs which can run for years and uh go into the millions of dollars. And then you have and a lot of people under underestimate this the reputational risk.
▶ 1:02:46A utility, a water utility is a customerf facing entity dependent not almost 98% I make that number up on rate payers not the federal government that we need to make the investments to ensure that I'm sorry
▶ 1:03:00you don't disagree that we need to make the investments to make sure our water is is
▶ 1:03:05sure but I'm talking about cost of the super fund uh uh designation and being dragged into litigation as a PRP that's you're right absolutely on the the costs are immense on just complying with the MCL's and the Safe Drinking Water Act.
▶ 1:03:20Mr. Falby, in given your experience with CIRCA and with transactions involving properties with contamination concerns, part of the issue here is is how it impacts communities, the surrounding communities and the opportunity for better paying jobs or new jobs. Uh and and to his point about the reputational problems, uh how does that impact the ability to develop a site that could get a business there, provide a better job for people, better healthcare, better
▶ 1:03:51Yeah. So, the development community and markets and lenders hate uncertainty. And what the POS POA or the POS designation does is it injects that uncertainty into the market because the cleanup standards are not well defined. and they're inconsistent from state to state and it with a chemical that's ubiquitous in the environment, finding the proper the actual source is very difficult.
▶ 1:04:12So, um for cleanups of of property to be accomplished, um trying to investigate where that PAS came from is extremely expensive and given that it's ubiquitous in the environment and deemed hazardous and very uh minute cleanup levels, um it implicates a lot of liability.
▶ 1:04:32Miss Bodan, you in your written testimony, you you talked about the draconian nature of circle liability and the transaction costs associated with resolving these. Uh that extends to potentially someone who would buy property that the EPA had deemed cleaned. Uh if if they discovered something else on that property, they would be subject to to a massive lawsuit. Is that correct?
▶ 1:04:57That's correct. Um it yeah EPA can can give somebody a comfort letter say a property is clean and no it it doesn't matter. You could sell the property and the subsequent property owner could then turn around and sue you and say no I don't I don't think I'm going to spend money to do more clean up. I don't think it's clean enough.
▶ 1:05:19I now yield back and recognize the gentle lady from Illinois Shakowski for five minutes for her questions. Well, I just want to say uh to you as our activist, as the person who has been working on this issue, how many years? I can't hear.
▶ 1:05:46Eight years.
▶ 1:05:47Eight years. Um and has anything really changed in that time? We've seen small improvements, but they were all self-funded, self-paid. Um we our utilities um invested I I was really shocked to hear that it's going to cost a community $400 million because combined um in Wilmington and Brunswick County for us to upgrade um a massive PAS contamination problem.
▶ 1:06:12Brunswick County is looking at 167 million and Wilmington looked at 43 million with ongoing kind of recurring maintenance costs, but a lot of that is dictated by the pollution upstream of us. If that pollution was removed, then the cost to treat our water would go down.
▶ 1:06:28Well, I just want to thank you for your continuing to work on this as pretty much um a regular citizen and it seems to me that more a whole lot more needs to be done. But what I wanted to uh ask you is that how are we going to help children the most? Although it's not only children, right?
▶ 1:06:58You were talking about other family members and friends that are affected, but what kind what can we do to help you at the very least to help the children?
▶ 1:07:15Quite honestly, um I don't see this um these permit shields and and weakening CILA as a path forward that's going to help any of us. What we need are stronger policies. Um we need like I said the resource conservation um recovery act RickRA to have all PAS listed as a class under that as hazardous waste. That then unlocks a whole suite of resources that could be at the disposal of in local state and federal governments.
▶ 1:07:44I think it is misguided for us to continue to have a conversation about who shouldn't be blamed. This is a problem that none of us created and it's going to be really hard to get out of it. But we're already I'm already putting my children's life on the line. You know, when we talk about uncertainty factors, it is devastating to be told that you have a cancer that no one has treatment for, but you got maybe two years left to live. And that's what Cara's mom is dealing with. That is an uncertainty factor that is soul shattering.
▶ 1:08:14I think at this point I would really appreciate if Congress could look at banning PAS as a class, making sure that the replacements are rooted in green chemistry, ensure that the polluters pay because right now we are self-paying for the cleanup. We don't want this in our water. We did demand that our utilities and make the investments to clean it up. And I think we need to also pay attention that some of these utilities, like my utility in Brunswick County, hadn't had a major upgrade since the 1980s.
▶ 1:08:44It was time for them to upgrade their infrastructure. They were working in 20th century technology, but we're in a 21st century environment with 21st century chemicals. It is time for us to make sure that we are treating water as sacred as it is because it is a basic need. It is a human right. And we need to stop allowing business related human rights abuses to occur. So, are pretty wealthy companies like Dupant involved in uh in your community?
▶ 1:09:14They're involved heavily upstream. Um they employ they're a significant employer. They employ about 500 workers and the problem that we're seeing is that these workers are dealing with a double exposure. uh they have the potential for contaminated groundwater if they're on private wells or they're having the issue with public water supplies also being contaminated while going into a work environment that is not necessarily putting the needs of them over the needs of the product.
▶ 1:09:40You know, some things that I've heard workers joke about is that um they're given clean suits, but it's not necessarily to protect them, it's to protect the product. You know, this is this needs to be a shift, a cultural change. If we're going to play with the devil because that's exactly what this chemistry is, the fact that it lives forever. We're playing God here with these things and we're not treating them with the care that they need to be treated with and understanding that this is a very dangerous proposition to be using this chemistry.
▶ 1:10:09Um, in terms of the the the children, um, do we have any particular efforts to be able to protect our kids?
▶ 1:10:22No. Women Barry the um, carry an incredible body burden related to PAS. And in fact, babies are being born contaminated. Breast milk is contaminated. I have had women call me and ask me how much how to put filters inside their houses just to try and create a protective bubble for themselves because they are terrified of increasing their exposure.
▶ 1:10:42But it would be their their effort.
▶ 1:10:45Yes. Their effort inside their home and it and it's nearly impossible. That's the one thing that we've learned is that sometimes commercials will pay for a utility um sorry a filter under the sink, but they won't put one on a shower. We have we have backyard gardens that are contaminated with PAS right now coming from Kamores. We can trace back the the signature of PAS that's being released in the air.
▶ 1:11:09Time is expired. Sorry to cut you off.
▶ 1:11:11Are you are you clicking me because we're done? Okay.
▶ 1:11:16well, I'm going to I'm going to yield back, but let me just say one thing as an activist uh myself. You are doing everything you can but the result is too small right now and we have to fight. I mean all the people need to understand that our kids are at risk right now. Thank you. I yield back.
▶ 1:11:38The gentleoman yields. The chair now recognizes gentleman from Ohio, Mr. Ladder for five minutes for his.
▶ 1:11:42Thank you, Mr. Chairman, and thank you to our witnesses for being here with us today. EPA issued an April 19, 2024 memorandum entitled PAS enforcement discretion settlement policy under circla. The memorandum stated EPA does not intend to pursue entities where equitable factors do not support seeking response actions or costs under circla.
▶ 1:12:06EPA explained in its memo that its enforcement discretion policies provide protection or circumstances warrant narrow uh that warrant narrow the scope of liability and focus on the significant contributors to contamination at a particular site.
▶ 1:12:24Uh, Miss Bodin, given your previous role as the assistant administrator for EPA's office of enforcement and compliance, are there any challenges to using the enforcement discretion guidance or memos in the context of CIRCLA or PAS contamination?
▶ 1:12:41Yes, thank you for the question, The policy is just that. It's a policy and it applies only to EPA. So EPA enforcement, which I explained earlier, is about a third of the cases that are brought under the super fund statute. It has no implication. It does not restrain anyone else from suing, whether it's a state, whether it's a a prior land owner, whether it's a neighbor, any third party can still sue.
▶ 1:13:11So EPA in its policy can say we think based on equitable factors that these entities should not be held liable. All they can do is refrain from taking action themselves. They can't stop anybody else from doing it unless on a case-byase basis they enter into a settlement agreement with that party and then give them contribution protection which is what EPA enforcement office was doing before Congress enacted the the Brownfields bill and provided liability
▶ 1:13:41protection for bonafide prospective purchasers. EPA was killing themselves trying to enter into these settlement agreements to provide uh protection from super fund liability on a case-byase basis. And when the law was passed, the enforcement office put out a memo saying this is really going to save us a lot of transaction costs. Let me follow up with you.
▶ 1:14:03Uh, what options would water utilities have if a liable party brought them into a third party contribution claim given the EPA enforcement discretion does not protect utilities from circular liability? In that
▶ 1:14:16in that scenario, I would say that other than fighting it, the only option they have is to go to EPA and say, "Sue me, settle with me and give me some contribution protection through the context of that settlement."
▶ 1:14:29Thank you. U M Mr. Mi u Mr. Mr. Mian, how do we ensure these communities are not unfairly impacted by the cost of PAS remediation? What role should passive receiver exemptions play in this effort? I I don't know how we insulate the rateayers of the cost of all this. In fact, the rateayers are going to be the primary uh burden carrier for the cost of regulations, super fund liability, litigation, reputational risk.
▶ 1:14:59Uh I I wish I could come up with a better answer, but that's the the grim reality if I understand your question.
▶ 1:15:08Okay. Thank you. Uh Miss Miss Bodin, in the absence of a passive receiver exemption, do you do you see a risk that PAS manufacturers or other primary contributors could use circulate contribution actions to redirect liability toward publicly owned util utilities with a stable rate base?
▶ 1:15:28Oh, I certainly do. Um, there is
▶ 1:15:30I'm sorry. Well, I'll ask that to Miss Bodin. I'm sorry.
▶ 1:15:34That's how the statute works. Yes, exactly. EPA can target and generally they only target a handful of entities and those entities then turn around and sue everybody else that they can find.
▶ 1:15:44Okay. Uh, Mr. Mim, would you like to comment? I'm sorry.
▶ 1:15:48Uh, yes. Uh, Congressman, um, you know, a couple of law professors out in California, Buzz Thompson at Stanford and Jim Saltzman at UCLA Law, u, they've reported that there were 600 cases where municipality was brought into super fund litigation by another potentially responsible party. Those were probably mostly landfill cases and actually Congress dealt with some of those liability concerns in new exemptions and defenses. So, there is precedent in New Jersey.
▶ 1:16:16um uh the wastewater system POIC Valley uh they were sued by EPA to try and get them out of liability through one of these consent degrees. The other the other uh potentially responsible party who I will remain keep nameless uh has sued has kept them in the legis the litigation for another 10 years with multiple lawsuits.
▶ 1:16:37So, the idea that this and it's a good faith effort by EPA, this uh this uh enforcement discretion memo, but as Susan said, it's not going to cut the mustard.
▶ 1:16:48Well, thank you very much, Mr. Chairman. My time's expired and I yield back.
▶ 1:16:54Chair, now recognize gentleman from California, Mr. Peters, for five minutes for his questions.
▶ 1:16:59Thank you, Mr. Chairman. So EPA has designated these chemicals as hazardous under CIRLA and the Trump's administration has defended that designation despite a clear aversion to regulation and there's no debate that these substances are truly harmful and Miss Donovan makes some excellent points but I I want to level set about what we're talking about here. Um we should be dealing with these chemicals upstream and I think it's Tusca, maybe it's Rick.
▶ 1:17:25Both of those uh laws are in the jurisdiction of this committee and we should deal with that. Uh we also have people should understand that the drinking water you get in your house is regulated by the safe drinking water act. That should set the right level of of um of uh toxicity to protect people who get drinking water. Mr. Mia has pointed out it shouldn't be all done at the end of the pipe. It's not fair for municipal water facilities to have to deal with this on their own and is extremely expensive.
▶ 1:17:55And what I think I think that we should really concentrate on solving this problem upstream and to the extent we have to through the Safe Drinking Water Act, but that's where we need to point the gun. And that's not what we're talking about today with this um this innocent receivers um uh exception under CIRLA. That's different. Okay. Um my concern would be here that um EPA has already recognized this.
▶ 1:18:22They've said they're not going to pursue entities where equitable factors do not support seeking response actions or costs under circla including farmers, municipal landfills, water utilities, municipal airports, and local fire uh fire departments. But that does not keep third parties from suing just to get these people into the money poting our rateayers money without any environmental benefit. without any environmental benefit. So that's why I'm open to this exception.
▶ 1:18:49I don't want I want to I think our our our um our rateayers are already burdened appropriately to some extent with having to clean this material up to to meet the um requirements of the Safe Drinking Water Act. But there's no benefit from putting them into this pot uh for circular liability when no one suggests that these are the polluters. The polluters are not the municipal water facilities. Okay. Um and um Mr. Mr. FBI, I think that's that's pretty clear here.
▶ 1:19:17I think we should work toward a reasonable exemption under this law. CIRLA is has been amended a number of times because we've recognized over the decades the very very strict I don't want to say draconian, but very strict and and punishing liability and a lot of people pay money uh in to just in legal fees over long periods of time.
▶ 1:19:38Um, I think the the law has had a really good effect prospectively because it's scared the be Jesus out of people about um about emitting hazardous substances in the environment because they know this liability, right? But it's retroactive and I've been part of lawsuits. I cut my teeth on some of the biggest first cleanups in the Midwest. Um, and everyone was in the pot and I have felt no sympathy for them.
▶ 1:20:03Um but um going forward, let's not penalize people who aren't the polluters and I'm particularly concerned about municip municipal rate, municipal water systems that have to um charge their rateayers for this. So if we don't get a benefit from it, let's not do it. Mr. Fabby, there's also instances in the private sector where this this is happening too where you take minimally contaminated sites and then they can't be developed. Um and I I know you have a a situation with a data center. Can you describe the the situation there? uh for us.
▶ 1:20:33Yeah, thank you uh Congressman. So, the issue with the data center, we have a piece of property. One of our members on my committee uh has acquired a piece of property that was a former industrial facility, didn't use POS, didn't use POS, POA, uh was a chlorinated solvent site. That site was cleaned up. There was a no further remediation letter issued as we call it in Illinois. And that is a prime site for redevelopment. Um they've been shopping it around to data center redevelopers.
▶ 1:21:00They even went so far as to get a phase one environmental site assessment done that actually said that look we have no reason to suspect any type of POS was used in this manufacturing facility. So you have a closure letter, you have a clean phase one and yet when they took it to market uh one developer in particular said well we don't really believe that phase one we want to test for these substances. Now you might say well go ahead and test.
▶ 1:21:26The problem is because POAS is so ubiquitous in the environment, the chances of finding it coming from somewhere at these very minute levels uh may you know impact that deal and the contract purchaser may walk away from this and even forfeit their earnest money because of the unmarketability of this property wants it. This is a great development site
▶ 1:21:47where you trying to use this for a data center where almost no one will be there. There will be no almost no exposure. It's probably a good site for that. And this is the nature of the exception we did in brownfields when we said, "Oh my gosh, this is we're preventing we saw the circle was preventing all these these sites from being developed um in an irrational way. That's why we created a new law for brownfields. We need to do something about these passive receivers. Uh and I I look forward to working with you all and yield back."
▶ 1:22:11Gentleman yields. Chair now recognizes the gentleman from Pennsylvania, Dr. Joyce, for five minutes for his
▶ 1:22:17Thank you, Chairman Palmer and Ranking Member Tonko for holding this important hearing. to our panel for being here today to testify. Circle was established to hold polluters liable for the cleanup of chemical contamination that they caused. This polluter pays liability framework is helpful in many instances where there is a need for expensive environmental cleanups so that the party that generated or released the hazardous substance can be held responsible for the associated costs.
▶ 1:22:46However, the liability established by CIRLA does not stop with the polluters. Under the statute's liability framework, any person who has had incurred cost related to the remediation of hazardous substances can file suit against not just polluters, but so-called passive receivers.
▶ 1:23:06These passive receivers are not involved in the initial generation or discharge of hazardous chemicals but might receive water, soil or other materials containing such substances. Given how common the use of PAS is, the 2024 final rule designating two PAS chemistries as hazardous substances creates a system where many passive receivers will be drawn into costly legal proceedings for contamination
▶ 1:23:36that they bear little or absolutely no responsibility for having created. I would like to focus on some of the defenses to circle the liability outlined in the statute and whether these are sufficient to protect the passive receivers in the context of these two affforementioned PAS Mr. Fala, I want to talk first about the bonafide prospective purchaser defense.
▶ 1:24:02A party that purchases land that they know or have reason to know is contaminated can invoke this defense if they meet certain statutory criteria and ongoing obligations. Would you please give a brief overview of the statutory defense and how it works?
▶ 1:24:19Yes, certainly. So, the bonafide perspective purchaser defense is a fairly recent innovation for CIRA. It was uh included in the Brownfield amendments of 2002. So, you know, as CIRCA has, we've lived with this for 45 years. CIRCA has evolved and the BFP is one of the new defenses that was inserted into CIRCLA.
▶ 1:24:37So, under the BFP, a owner or a new buyer of property can do an investigation, a phase one environmental site assessment, identify contamination, but yet then have a shield for circular liability if certain uh criteria are met. One is to do that all appropriate inquiry, which is usually a phase one environmental site assessment.
▶ 1:24:56Then though you have to when you get the property you have to have continuing obligations you can't just sit there if there's a problem if there's a release you actually have to address that so this defense can be lost it's also self-certifying which means EPA is not involved so a BFP or wouldbe BFP doesn't actually know they have maintained that defense until it's tested in litigation so because EPA is not involved and you don't get a certificate like with a state closure um it is uh has
▶ 1:25:26a lot of uncertainty to it
▶ 1:25:28can you outline any needed improvements for this defense such as EPA providing more certainty to the parties so that they can assert this defense and finally in your opinion are statutory changes
▶ 1:25:43Yes, I think I think there is an avenue for strengthening the BFP. The reason it was self uh deemed self-certifying in the beginning was to try to get EPA out of the way so you didn't have to wait for EPA to oversee a site. The problem with that is you have no regulatory authority that sort of blesses the cleanup. There's nobody to say yes, you've done a good job. That's what happens on the state voluntary cleanup programs.
▶ 1:26:05Um, as far as the uh statutory fix, I think there should be a passive receiver exemption built in a circlaw very narrowly tailored for passive receivers among them owners of real estate that did not.
▶ 1:26:16Thank you. I think we needed that clarification today. Mrs. Boddine, you noted in your written testimony circle of liability exclusions for innocent land owners where contamination is caused by a third party and contiguous property owners where contamination migrates from one source to an adjacent property. However, you noted that the burden is on the land owner to prove that it is eligible for these defenses and they often incur significant cost in that process.
▶ 1:26:45Will these offenses be difficult to invoke in the context of
▶ 1:26:51I would say yes because of what has been discussed here today, the fact that you don't know where the PAS is coming from.
▶ 1:26:57But given your experience of drafting circa legislation and implementing it at the EPA, do you have any advice for us in Congress for considering whether to modify existing defenses or update new
▶ 1:27:10I you could do both. um on the modifying existing you could deal with the burden of proof in issue. Is it is it a defense where somebody raising the defense has the the burden to show that they're eligible or is it an element of liability saying that whoever's bringing the lawsuit has to show that you that uh that you fall within that you are indeed liable. So that's that's existing on the new ones. Um yes there are I I mentioned the the equitable factors. I mean, we've talked here today.
▶ 1:27:39People who didn't uh use PAS are still being swept in that concept of intentional use. I think it came up maybe Miss Don brought it up. I mean, there are states that are issuing bans on use of PAS and they have defined intentional use.
▶ 1:27:55My my time has expired. I thank you. I will submit additional questions for review. Mr. Chairman, I yield back.
▶ 1:28:02Gentleman yields. Chair now recognizes gentleman from Massachusetts, Mr. auction claus for five minutes for his
▶ 1:28:08Thank you, chair. I want to start by asking about testing uh with you, Mr. Mian. Um you noted in your testimony you estimate that utilities will need to make capital investments totaling between, you know, 37 to 48 billion by 29 in order to fully comply with the drinking water standards. Um an enormous cost. That's something I hear a lot about from cities and towns. I represent 35 cities and towns. Massachusetts because of a lot of legacy industry and relatively dense land use.
▶ 1:28:38We have a lot of accumulated PAS. Um but the concern I hear is that um that the testing gives almost a sense of false precision that distinguishing between four parts per trillion versus six parts per trillion. Uh it can depend on the lab that's being tested. It can depend on the time of day. It can depend on what kind of gloves somebody is wearing when they're doing this.
▶ 1:29:00And a call for action that I have heard repeatedly is we need inline high integrity testing of the PAS content within drinking water facilities. Um is that something that would be a useful investment from the federal government in terms of R&D?
▶ 1:29:23Well, I um I I would not rely on my law degree to give you technical advice on testing, but generally improve, you know, this is a new frontier at these levels, four not millions, not billions, but trillion parts per trillion. And so I know that uh the early stages have been rough beginning to uh uh get the standards right, the methods, the testing.
▶ 1:29:43So, um, at least some, uh, if you mean funding would be useful to develop the most effective approaches, which I'm not confident to tell you what those are.
▶ 1:29:55Miss Bod, if you have any comments, welcome those two.
▶ 1:29:58Well, I I wanted to point out that um the drinking water standard that's been discussed here today, which is at four parts per trillion, is not the riskbased standard. It was based it's based on um what can actually um be have a reliable test testing for and it goes the the riskbased standards the BPA came out with were parts per trillion and 03 for each of the two chem chemistries
▶ 1:30:28and the four was at the uh what is the practical quantification level? Yeah, I don't think we're at reliable, at least in the in the sense of public health communications. I don't think we're at reliable testing right now because I think there's a lot of variability that actually undermines confidence in the test results.
▶ 1:30:45And we need to make federal investments in inline testing that is consistent and uh and that people can understand in real time, not just lab by lab.
▶ 1:30:56I do want to move on because I want one one other issue. Um, Miss Donovan, I I I just so totally agree in what you have been saying, which is that debating four parts per trillion versus six parts per trillion in municipal water supplies. We are we are chasing this contamination at the point in the bio acccumulation cycle when it is the hardest to mitigate and we got to go upstream. Uh, and we've got to address it at the point of production.
▶ 1:31:22You've talked about using uh the resource conservation recovery act and and designating uh PAS as a as a hazardous substance under that. Would you also support using TUSCa though so that we can proactively regulate the production of PAS?
▶ 1:31:40I'm not a policy expert. I work at a church. Um so I'm really sorry I can't help you and the details of that, but if if you don't mind um and will allow me to take a little moment and address Mr. Peters um and maybe you both if you feel the same way um be very careful about allowing shields where um bad actors can hide behind them because that's a slippery slope and we have seen that play out in North Carolina and the town of Pittsburgh and the town of Burlington where these PAS um polluters
▶ 1:32:11are hiding um or are co-opting the local utilities running the show and um and allowing the pollution to to proceed and then it becomes harder.
▶ 1:32:22I hear that. And I think what we're trying to avoid is this downstream uh at great expense and suffering. And it seems like while RCA is good for for remediating existing contaminated sites, we should do that.
▶ 1:32:36We got to strengthen TUSCa and and uh you know expedite unreasonable risk determinations for for PAS as a chemical class and enhancing the authority for persistent bioaccumulative substances and um just getting a lot tougher on uh uses of PAS at the point of production and phasing them out as we did for example with ozone depleting chemicals in the 80s and 90s under the Montreal protocol. like we have frameworks for how to do this. Um
▶ 1:33:07when we did that with the Montreal protocol, we replaced them with PAS. And that's the problem that gets into the green chemistry thing is that we cannot keep doing regrettable substitutes and we cannot allow industry to dictate it because they have shown us over and over again that they don't self-regulate and they don't hold themselves accountable.
▶ 1:33:27Yeah, we can't replace them with with other toxic substances, but we do need to replace them out of the point of production. I I yield back.
▶ 1:33:35Gentleman yields. The chair now recognizes gentleman from Texas, Mr. Weber, for five minutes for his
▶ 1:33:40Thank you, Chairman. Uh, Mr. Chairman, I ask unanimous consent to enter the record this letter from Dave Ross, the executive vice president of Viola, a water, energy, and waste recycling company. This letter shares recommendations on how to address PEOS management and shares results from a May 2025 test of their incinerator in Port Arthur, Texas, my congressional district, which the test showed their incinerator destroyed 99.999%
▶ 1:34:11of POS contaminated west waste. I have unanimous consent to enter the Sorry, I forgot I was sitting in the chair. Uh, without objection. So, ordered. Thank you, Mr. Chairman. Um, Mr. Mihan, is it Mihan or Mihan? Each man was my next guest. Yeah.
▶ 1:34:36Uh water utilities are already facing substantial costs to comply with POS regulations under the safe drinking water act and clean water act including treatment monitoring as well as disposal of POS uh res residuals. How would going back on your law training now? How would subjecting these same utilities to circla liability for POS on top of already existing compliance obligations?
▶ 1:35:04How would that affect water affordability particularly in small rural and disadvantaged communities?
▶ 1:35:11Um, of course the problem that small rural communities uh whether rural or not that matter they don't have the base to spread the cost out the the rateayer base. So they're at a disadvantage to start with as well as the technical limitations that they have in terms of staff and expertise in house. So, u they will probably you'll probably see a lot of non-compliance or failure to comply and then the cost will be I mean you can just imagine you know they just won't be able to handle them. Um and and remember we've got other mandates too.
▶ 1:35:42We're dealing with lead service line replacement 40 million of those we're going to have to replace at tremendous expense. Rates generally and I'm not limiting this to small systems are going up three three at least three to four times the rate of inflation. And and I won't say that's a bad thing because we've been behind the curve in terms of our infrastructure investments. But the fact is that is the reality. They're going up and all these pressures are coming to bear on, let's face it, the rateayers, not the state governments, not the federal government.
▶ 1:36:11It's primarily the rateayers.
▶ 1:36:13Has it been your experience that there's just not a whole lot of lawyers that are willing to file lawsuits in those small communities because the money is just not there?
▶ 1:36:21That may be true.
▶ 1:36:23Okay. Um I miss is it Bodin or Boddine?
▶ 1:36:29That was my guess too. So I'm going to come to you with the same question. Small communities where they really can't afford to do that. What's the answer there?
▶ 1:36:40The answer uh this is a it's a chronic problem whether you're dealing with PIO PAS or anything. And the answer actually is getting uh pe operators there who can manage the system because because frankly in smaller communities they can't afford to pay the operators enough to stay and so there's a lot of turnover and so you have a lot of issues because they're just not being operated
▶ 1:37:03And I didn't read your b you are bio. Are you an attorney also?
▶ 1:37:06I am a I am an attorney. Yes.
▶ 1:37:08Okay. So we've got two at least two attorneys on the panel. Maybe three.
▶ 1:37:13I'm a recovering one. And we've got a mom that's got the most important role. She's raising children. So, thank you for being here. Uh, Miss Rhoden, I'm going to come back to you. So, we're now hearing how some state and local governments are reportedly pausing POS sampling programs to avoid discovering contamination that would then trigger circular circular obligations.
▶ 1:37:34Do you think more state and local governments should will follow suit without changes to circular or how would that affect and and if so how would that affect environmental transparency? that's an interesting question. I had not thought of that. You're saying that they're not looking for it because if they find it, they're worried about liability. I believe that's what you just said.
▶ 1:37:56I think that's the case.
▶ 1:37:57And that actually can create increase risk instead of reducing risk. So
▶ 1:38:02and that that that's a another unintended consequence of the very very broad liability created by super fund whereas you know I think people here today have talked about there are other
▶ 1:38:14Okay I'm running out of time. Is it falby or falby?
▶ 1:38:17Uh fi
▶ 1:38:18okay what do you think about that very
▶ 1:38:20Uh I think that uh putting the um giving the decision to the states is usually the best idea. Many states were regulating pas before the federal government acted. I think cleaning up property at the local level at the state level is really it's quicker, it's cheaper, it's faster, and you get usually get a closure certification of some kind which the market really
▶ 1:38:41Okay, I thank you for that short answer. I yield back, Mr. Chairman.
▶ 1:38:44Gentleman yields back now. Recognized gentleman from New Jersey, Mr. Mr. Mendez, for his five minutes of
▶ 1:38:50Thank you, Chairman. Mr. Donovan, I just want to thank you for being here. Uh, I went to school in North Carolina and spent some time in Wilmington. So, I appreciate the place that, uh, has been your home and that you fight so hard to protect. And as the father of a 5-year-old and a three-year-old, I appreciate uh, very much what you're doing to protect not just yourself and the families that you care about, but entire communities. Um, which brings us to the conversation we're having here today. Nearly all Americans have detectable levels of PAS in their blood. Even babies are subjected to POS exposure in uterro.
▶ 1:39:20A new study found that PFAS exposure in the womb or in infancy significantly increases the risk of preterm birth and triples the infant mortality rate. PAS is found in at least 172 million Americans drinking water posing serious risk to public health. Does anyone on the panel think that the work in limiting PAS contamination and exposure in this country is done is complete? Yes or no?
▶ 1:39:45Oh, I'm going to jump on that one. No, not even close. Um the fact that the fact that we only as grateful as I was to the Biden administration for adopting um PAS drinking water standards, it was only for six and now we're seeing four of them being threatened, the ones that are commercially relevant. So no, the the baseline was to stop our drinking water exposures, but after our drinking water for exposures, for the majority of Americans, it's food contamination.
▶ 1:40:14And we're not even talking about food contamination right now. We're talking about who shouldn't pay for the problem instead of addressing the total exposure pathway that we're all experiencing. It's more than just food. It's air. Our our beaches are coated in an atrocious amount of sea um PAS in seafoam. Highest ever recorded in literature to date.
▶ 1:40:34Don't worry, I'm coming back to you, Miss Adam, but does anyone else do you uh just going to go down yes or no? Do you think the work is done?
▶ 1:40:42Yes or no?
▶ 1:40:44It's a simple yes or no. Do you think the work was done on POS contamination and and Americans exposure to it in our throughout our country? Yes or no?
▶ 1:40:52No. But the statutes have standards.
▶ 1:40:55Sir. Yes or no?
▶ 1:40:57Uh we think there's lot
▶ 1:41:00So we're not done yet.
▶ 1:41:03I I think we're here because it's not
▶ 1:41:06Yeah, that's correct. And so I agree. And listen, it's about sequencing, right? If I felt that we were farther along on limiting the damage that POS causes to our communities, and I can see how we talk about liability at some point, right? I just don't think we're there yet. We should be having a discussion today, every day about PAS as a public health concern. The other challenging thing is that tomorrow we were supposed to be in session. We're being sent home. Uh we were in a government shutdown, the longest government shutdown where we weren't brought back to Washington to have hearings like this.
▶ 1:41:33So, we've lost legislative days and every day that we're here is critically important. We should be focused on the issues that impact our communities the most. Which brings me back to you, Miss Donovan. It's been almost eight years since you last testified before this committee. Do you believe that the topic of this hearing, cir?
▶ 1:41:53No, I don't. And I also don't think that it is um it's really going after the polluter pays in any sort of way. I mean, we're stuck in massive lawsuits to get our polluters to pay. And what we've been begging for for the last eight years is legislation that makes it so lock tight for us to be able to get the polluters to pay. We want every tool, every resource available.
▶ 1:42:12But instead, we're sitting here talking about how we can shield people from it instead of creating um a lock tight accountability chain where everybody's at the table realizing we're all on the line because my family's already on the line for this right now.
▶ 1:42:24Upstream, downstream. Correct. everyone looking at the entire continuum and making sure that we're protecting the people at the end of it who are the American citizens that we are tasked with protecting. Is that correct?
▶ 1:42:34Thank you. Um M it's my understanding that the party responsible for PAS contamination your community is very clear just like responsible parties in New Jersey's proposed PAS settlements are very clear. So in this in this case and in many others the manufacturers of PAS who dumped into communities like yours will be held financially responsible for the cleanup. Is that your understanding? It is my understanding for the drinking water, Kamores definitely has the majority share, but they're not the only ones. Um, we do have polluters upstream.
▶ 1:43:02And then we do have a massive the world's largest um munitions depot terminal is in Southport. And we think the PFOS contamination along the shorelines is coming from there.
▶ 1:43:13Okay. And again, I think we can all agree that it's the polluters, not taxpayers or rateayers, who should be paying for the mess that they created. And those taxpayers and rateayers expect affordable, highquality services that protect their health. I think that's an entirely reasonable thing for any American whether they live in a red state, a blue state, a rural area, or an urban area like the one I represent. We should be able to pour a glass of water for our children knowing that it will not harm their health.
▶ 1:43:42I don't think that's too much to ask for this government, this country in 2025. Thank you again, Miss Donovan. I yield back.
▶ 1:43:48Gentleman yields back. Uh point of clarification, there were no hearings scheduled for tomorrow because it was a getaway day and the hearing we're having here today the team files are released tomorrow as well, which I'm sure was part of the
▶ 1:44:04I don't think that had anything to do with consideration. I think the consideration in all fairness was Christmas. All right, I now yield myself five minutes to talk about the issues of the day. Um I I find this hearing extremely interesting. I'm learning. Um I have a lot of skepticism and I am affected u indirectly. I represent Spring Hollow Reservoir, the land that Spring Hollow Reservoir is on that is run by the Western Virginia Water Authority.
▶ 1:44:32The Western Virginia Water Authority tested in 2020 and found that they had on shockingly not didn't know where it came from. They had Gen X uh as they traced it down, but they didn't even notify the public in 2020 because it wasn't listed as being something they needed to notify the public about until 2022. They then notified the public as they tracked it down.
▶ 1:44:53They found that it was your Kors plant that had sent uh tanks, if I remember correctly, to a company called Prom upstream in Renault County to be cleaned out because they had a buildup of of calcium and magnesium. Prom was not advised as I understand it based on the press reports.
▶ 1:45:16It was never advised that u that Kors had uh PAS and or Gen X in this case and that they should be on the lookout for Gen X. As a result, Springh Hall reservoir was contaminated. Prom stepped up and put 1.9 million into trying to resolve the problem uh in the Springhaller reservoir. raises a couple questions for me. Mr.
▶ 1:45:42Mian from a water public water authority, should the Western Virginia Water Authority have known that Gen X was dangerous when they first found it in their water in 2020?
▶ 1:45:53Um, I can't speak for them. Um, should they have known that was clear, most of the people running water utilities are engineers. They're not toxicologists. They're not scientists in the sense of doing chemical research. And if you know this wasn't on the radar of society generally. So
▶ 1:46:13so it wouldn't have been switching over to medical malpractice language. It would not have been the standard of the industry for them to have been alert. They they tested it. They saw it. They thought it was strange but they didn't know to alert anybody.
▶ 1:46:23That is correct. All right. Miss Bo Um as you know electric power plants intake use and discharge uh water that already may contain PAS or Gen X. How can we avoid unfairly shifting the burden of PAS cleanup to the electric rateayers as well as the water rate payers? You
▶ 1:46:44you've identified an incredibly important issue which is that yes, because PAS is ubiquitous. It's going to be in residuals generated by entities that are not intentionally using PAS.
▶ 1:46:57Kind of like my ProKim people, they had no idea they were cleaning out calcium and magnesium as far as they knew. That's not an intentional use which has been recognized as you know by by EPA as an equitable principle that you might want to use uh if you were creating passive receiver liability that no intentional use but nonetheless there are going to be residuals. They're going to be at incredibly low levels.
▶ 1:47:23So it's not the entities that you've talked about like kamuros which are going to have high levels or perhaps your textile manufacturers or the people making Goreex uh you know boots etc that with high levels. It's going to be people who who have it in their intake water or have it from sources they don't even know where it's coming from and the levels are really low but CIRLA doesn't care. There's no threshold. You're still liable. If you can detect it you can be held liable.
▶ 1:47:49Yeah. I I was really interested in some of the the concepts. I liked your idea. Uh, and I'm not saying you were promoting it, but you at least laid it on the table of shifting the burden of proof. And I like that because I'm concerned about what Mr.
▶ 1:48:02FBY has raised because all of my people downstream of the Smith Hollow reservoir who they believe that they probably started getting those chemicals in 2014, didn't test for it until 2020 or didn't test at all till 2020, and then didn't know it was a problem till 2022. But every landowner downstream from that site because they don't use they don't put it all into the drinking water.
▶ 1:48:29Some of it gets just released back into the river could theoretically be liable. Is that right, Mr. FBY?
▶ 1:48:35Yes, that's correct. And as a matter of fact, um, just this month, EPA updated its website to, uh, include an affirmative, as I can understand it, an affirmative showing that a brownfield grant applicant is not liable for POS or POA on the property that you're seeking a grant from. And that's not usually how it works. A phase one environmental site assessment is not going to say you're not liable, right? This is a this is a technical document.
▶ 1:49:01The last thing consultants do is make legal pronouncements in these documents. So, I don't know how that's going to work. I'm very concerned about it.
▶ 1:49:08Well, and I think we need to clarify that. And I probably will have some additional questions uh for the record at a later time, but my time is up. And I now recognize Mrs. Baragon from California. Miss Baragon from California for her five minutes of questioning.
▶ 1:49:24Uh thank thank you, Mr. Chairman. Uh, Miss Donovan, it must be hard for you to sit here and to hear some of the question and answers that are being given by witnesses. Would that be
▶ 1:49:36Yeah. What What is it about some of the question answers that makes it difficult for you to to sit through? I can I can tell you that as a legislator, I think about my own family, my and say was If there was toxic chemicals in my drinking water, I should know about it as a resident. And so just hearing of, "Well, should you have known?
▶ 1:50:06Well, I'm not a toxicologist. Well, that's not our job." It just um sounds like we're having the wrong conversation. But what is it for you that makes it frustrating?
▶ 1:50:17I mean, I I think this goes back to what I said earlier is that um water utility lobby groups should be the biggest environmental champions known to man. And in the eight years that I've been doing this, I rarely see them. I see them actively working against us, treating it like it's a business, like water is a commodity. Water is a sacred human basic right. We should be protecting our sources, making them as pristine as possible. We should keep be keeping them away from industry.
▶ 1:50:43We should be recognizing that water utility companies are are should not be profit centers ever. You know, we bail out farmers because we understand that farmers can't go under. They provide necessary food to us even though we have abundance of food and we waste it sometimes. Water should be treated the same way.
▶ 1:51:02Instead of talking about how we need to shield people from liability because we don't want we don't want them to be oversued, why are we not talking about how the federal government can make sure that no water utility of any size ever has to worry about whether they need to make that decision between having clean, safe drinking water or having cheap toxic water. Like that is not what we should be talking about right now.
▶ 1:51:27Thank you. Um, Miss Donovan, uh, sometimes when I've advocated for cleaner, uh, water standards or pollute going against polluters, I've been accused of, well, you're from a very Democrat liberal area. Are you from a Democrat liberal area?
▶ 1:51:45No, I live in a red county. Um, I have a lot of diverse friends and and I'll say that, um, there's not a lot we agree on and can talk about, but this is the one area where we have seen the most bipartisan support. You come to my area, you talk about PAS, everybody knows what you're talking about. You talk about Kamores and DuPont and everybody's ready to see them go under. Nobody likes DuPont. Nobody likes Kamores. And you know what we haven't been talking about today is how are we going to make there's only 12 PAS manufacturers in the entire world that are causing this problem?
▶ 1:52:15Why are we not talking about how we bring them to the table? You know, DuPont is profiting off of this right now because DuPont sells water filtration. We are allowing DuPont to get away with what they started back in Virginia and in North Carolina. They knew they had the opportunity and the chance to put the controls on and they chose not to. And here we are stuck in seven years of litigation with them just to get them to pay for our drinking
▶ 1:52:41Thank you, Miss Donovan. The Trump EPA has proposed broad exemptions to a POS reporting rule that was designed to help understand where POS are produced and how they are used. Collecting this information from companies would help EPA regulate POS and prevent further contamination. From a community perspective, how important is it that industry be required to disclose where POS are used?
▶ 1:53:08And what happens to communities when companies are exempt from providing information?
▶ 1:53:15Well, it's not fair because we're all making decisions and they need to be informed decisions. You know, I raised my children on this water and I can I I worry constantly about the body burden that um we expose them to unnecessarily. You know, I worry about any sneeze, any backachche, any complaint of an ache or pain. Sometimes when we go out to eat, I will purposely drive out of my way to go to an area where I know the water is safe and clean. I came here and I don't even know if the water is safe and clean here.
▶ 1:53:45I don't even know sometimes what food choices to make at a grocery store and sometimes I'm afraid to go to a farmers market in our area because I'm worried that it was that the produce was raised um with contaminated tap water, contaminated wellwater. We need the right to know. It must be fully disclosed. It's the only way that we can have consent and right to information is recognized by the United Nations as a basic human right.
▶ 1:54:12Well, thank you uh for your advocacy and for your work and for being a voice not just for your community for those across the country. Um, I know it can be challenging and so you being here today is very helpful and thank you for sharing your story and it's something we should all be advocating for and making sure we have clean air and clean water and certainly um the ability to not have to question whether we can drink the water. With that, I yield back.
▶ 1:54:42Gentle lady yields back. I now recognize Mr. Sodto for his five minutes of question.
▶ 1:54:50Thank you, Mr. Chairman. The super fund law known as circle has protected countless American lives. In 2024, we saw EPA advanced new protections against two types of POS chemicals, POA and POS. Uh widely used in consumer industrial uses. We've heard some of those uses today.
▶ 1:55:11These uh chemicals unfortunately have poisoned our drinking water in many communities uh resulting in cancer clusters u low birth weight liver disease and more. We saw it particularly hurt our heroes in Florida at Ocala in the Florida State Fire College where we saw chemicals and firefighter suppressants uh that contaminated groundwater supplies. uh these included POS chemicals.
▶ 1:55:41So our firefighters sued to uh because they were facing thyroid, kidney, breast, and parathyroid cancers. Uh and last term, I was able to file a firefighter POS bill. Uh and we're actually working on a new one. Uh you know, Mrs. Miss Donovan, have you heard from any firefighter families in in talking uh with families across the nation about POS exposure? Yeah.
▶ 1:56:07And it's devastating to hear the stories to to to listen to a grown man break down, a grown man that you know is incredibly brave because they'll run into a burning building just to save a kitten or something. And there I have a friend um and her husband is a firefighter in Nantucket and he developed testicular cancer.
▶ 1:56:28and she was telling me that on top of struggling through the diagnosis, um they also found out that there was further contamination of their drinking water and it felt like a double cumulative whammy. But they were trying to figure out if he should stop being a firefighter because the risks were so high. He's he's not afraid of of fighting a fire. He's afraid of dying of cancer because he's not being protected.
▶ 1:56:57He's not being protected in the most basic way with with clean gear, with clean water, and with making sure that that the products that are burning in the home are not creating a a chemical soup that he's he's enduring. You know, should he quit mid-career and find something new just because of this? In our area, our firefighters um were were incredibly concerned as well, and they've been pushing back.
▶ 1:57:25But that the problem in North Carolina is that our firefighters don't even have um good good medical liability opportunities. So they're at an increased risk of getting cancer and in North Carolina they were having to fight the state not to stop their exposures from PAS but just to even get a fair shake and insurance
▶ 1:57:45Well, thank you for that and I had to work on those issues on the state level and on the federal level with a cancer presumption. Um but we also see in the foam them now taking PAS out of it but uh we have a duty members uh to our local heroes to be able to get this done. Mr.
▶ 1:58:02Mian we saw in the infrastructure law under Biden 50 billion uh for the uh water infrastructure including the state revolving fund which so many uh local water utilities utilize. we've been able to work with to secure over half a billion dollars from that for Toho water, Poke Water, for OU in my area to help with clean drinking water.
▶ 1:58:26But we've seen um the Trump administration propose a 90% cut to the state revolving fund for 2026 from 2.8 billion to 280 million. So, as we're talking about trying to clean protect clean drinking water from POS and other chemicals and making sure our utilities have the uh the money they need, what effect would that be if you saw the state revolving funds decimated by 90%.
▶ 1:58:52Well, it would be uh it'd be entirely negative. Uh I was uh last just last earlier in the year had a conversation with the uh general manager of Milwaukee uh utility and they've had a pretty good uh program to remove lead service lines and they uh they depend on the SRF and they said without the IGA or BIL uh they they would
▶ 1:59:17the infrastructure law just for my constituents right you
▶ 1:59:20yeah without the the money it it wasn't going to happen uh because you know they've got a pretty you know rate payer base, not exactly affluent. And uh so yeah, it would things again. It will default again to the rateayers. And so then you get into a local political discussion of how much you can afford to raise the rates and at what pace. And of course, you know what, if you've ever been to a rateayer hearing, you hear a lot of conflicting views about where the rates should be.
▶ 1:59:46And so if Congress delivers on our state revolving funds, this will keep water utility rates down. Although I will, and this will not be a popular statement, uh the earmarks are really devastating the SRF's program because they are grants. They are not loans. They do not revolve back into the the the loans and there's 30 states now that are getting less money uh from the SRF program because of
▶ 2:00:11So, we got to improve that. Thank you.
▶ 2:00:13Gentleman yields back. Now recognize gentleman from Texas, Mr. Fluger, for his five minutes of questioning.
▶ 2:00:18Thank you, Mr. Chairman. Thanks for the hearing. I I flew uh fighter jets in my professional career. Obviously, PAZ is something that that I was very familiar with because it was a foam that was used to put out fires of um you know, those types of weapon systems. So, it's something that I'm I'm definitely familiar with and and understand uh the conversation today being really important on the contamination and and what the implications are for how to deal with this. I'll start with Miss Bodine, have a series of questions.
▶ 2:00:49Um, you know, the the Pentagon has identified at least 700 installations that that have um known contamination and just baseline question on what what are the the the potential fiscal implications for taxpayers uh under the current legal framework.
▶ 2:01:10the um so the department of defense has authority to clean up the pest contamination with or without the cir designation that we're talking about here today in this hearing. Um they have been required by the various um national defense authorization acts to report their liabilities which I forget their most recent number but they but they do they are underounting it. It is billions.
▶ 2:01:32It's, you know, they they only talk about, you know, 4 billion because that's what they have underway, but they haven't done a whole lot of cleanup, actual cleanup work yet. So, they do also say the number will end up being much much higher. So that um that is a consequence of the uses of of the um pifoas uh often to create for safety reasons but nonetheless have created contaminate contaminating groundwater.
▶ 2:02:02So the difference between what they're doing now versus what uh they can what would happen with or without the um the circular designation is can somebody sue them. So, right now they're cleaning it up, but they clean it up based on their own priorities and their own pace with the circle of designation, then um somebody can sue them and and say, "No, put my site at the front of your list."
▶ 2:02:26Okay, so let's pull in that a little bit. Does it make sense for Congress to continue allowing liability to be resolved through prolonged case by case litigation, or should there be some sort of comprehensive statutory solution that addresses it?
▶ 2:02:40Well, the I think we've It's clear that liability is the least efficient way of addressing a problem and that money is better spent on dealing with the cleanup, you know, whether it's DoD's money or anybody else. However, um I'm sympathetic obviously to downstream communities from from Air Force bases, etc. Uh and so, but Congress has a choice. If you're creating exemptions, you don't have to include uh federal agencies in your exemptions if that's your choice.
▶ 2:03:11They are separately funded. uh by Congress, all the cleanup done by a federal agency is paid by the federal
▶ 2:03:20If you were to put if you were to put odds on the cost, I know I'm asking for math in public, but but just just give us just give us a scale, you know, 2:1, 3:1, 10 to1. So I've I in my testimony I did uh I did give some numbers about well what percentage of total super fund costs are associated with the transaction costs as opposed to cleanup and you know it's the smaller the entity the smaller the contributor the the greater the percentage and some and it was over 50% for very small parties that have been
▶ 2:03:50dragged in. They're spending more money on lawyers than they are uh cleanup costs for DoD they're it's so mammoth I can't even give you a cost. Well, okay. Why don't why don't I ask ask it this way? Who who stands to gain with the individual suit method and and who would who would lose in that? I mean, are there winners and losers in each approach?
▶ 2:04:18Are we still talking about DoD? Are we talking more broadly?
▶ 2:04:20More broadly.
▶ 2:04:21Okay. So, um, if EPA were to take its money, the trust fund money that's there because it's coming in through the petroleum taxes and chemical excise taxes, uh, and and do clean up without suing, but do clean up based on the funding that they have. you could everybody could gain.
▶ 2:04:47And then the question is is there enough money in the trust fund to do that or you still need to keep some people liable so that um so that there's you know some people who people have have been characterized here as true polluters which as I've tried I think many have made the point is a much narrower class of parties than people that super fund liability system sweeps in.
▶ 2:05:12Yeah. Thank you. was very articulate and that's uh I think the overall goal is to get it cleaned up and have everybody win. I yield back.
▶ 2:05:22Gentlemen yields. Chair now recognizes gentleman from Ohio, Mr. Lansman, for five minutes for his questions.
▶ 2:05:28Uh thank you, Mr. Chair, and thank you all for being here. Um this is a really important hearing. I think this hearing gets at ultimately in addition to solving a very complicated, very important problem. What side are we on?
▶ 2:05:45And I I I do believe that at the moment in the United States, we are facing one overwhelming issue and that is the extreme concentration of wealth and power. And no place is that more true than in big tech. And the data centers are an example where these data centers are going up all over the country, particularly in rural communities.
▶ 2:06:14Um I have a Wilmington in my neck of the woods. Uh and they're dealing with a data center right now. And think about this. They the data center comes in some construction jobs up front, you know, at the beginning use a ton of water, make a ton of noise.
▶ 2:06:34There are these legitimate pollution and the question about forever instead of tackling those things, what they get is they get land. I mean, we're talking about Amazon and these big tech companies.
▶ 2:06:54They get a bunch of land and then these towns and townships that have no money, they got to give them tax cuts, tax breaks for the data centers to come in. So depleting their bank accounts and it leaves communities frustrated, angry, poorer, sicker, and it's fueling It fuels higher utility bills for folks, less local money
▶ 2:07:24for towns and The pollution now these big tech companies get billions and billions of dollars. Those are the winners. The president can make memes. My staff does. I you know and now these communities may not be able to sue. we may not be able to take on these folks in court.
▶ 2:07:53So, we got to pick a side. And Miss Donovan, I'll give you the rest of my time. you pick the side of these communities. I'm going to pick the side of these So if my colleagues want to join and say, "Okay, I'm going to pick the side of these communities." Am Amazon's going to be fine.
▶ 2:08:19The innovation's going to Top three, and some of this you'll repeat, but top three things we got to do to be with them, not the big tech companies. Top three things you want Congress to
▶ 2:08:36I wasn't prepared for that. Um the top three things is um end all exposures to PAS. Make the actual polluters pay. We know the billion-dollar polluters. We're sitting here bickering over over such inconsequential things, but we also need to know the health risks.
▶ 2:08:55You know, I part of our human rights claim was the fact that I need to be able to go to my doctor and have a real authentic conversation with my doctor about the the risks of our exposures. We don't know all of those right now.
▶ 2:09:10you know, I'm I I had to reschedule an um an an urgent colonoscopy just to be here and um and I don't know what's going to happen, but I also do my research and and I can't find, you know, a really strong link or a connection. We're never going to be able to fully in a legal system hold Kimors and Dupant accountable without being able to establish a human causal link to the exposures.
▶ 2:09:37And we have been fighting in my community for seven years to try and get a largecale human epidemiological study. That's what the power of the United States and Congress could do. You could start funding that research. You could pass legislation right now to get that going. And we could definitely hold these polluters accountable. You can stop the exposures by joining countries in the EU and is starting to implement essential use bans.
▶ 2:10:06We can start talking about holding um sorry the military I I I just want to go back real quick to there because um the DoD knew in the '9s that their AF was um was contaminated and was causing real harm, but they still chose to continue to use it and still chose to put service members at risk. And we know that there is a long history of the Department of Defense um misusing our human soldiers and then not caring for them on the back end.
▶ 2:10:36So we need to make sure that there's really strong provisions to help DoD contaminated communities because of sovereign immunity for them. Um so I really appreciate that you gave me all this time. I'm sure I could put together a longer list. Um but I think there's a lot more that we could be doing right now than than just trying to talk about um or playing the not me game. Um the not me ghost. Thank you so much.
▶ 2:10:58Gentleman's time is
▶ 2:10:59yield back.
▶ 2:11:00Chair now recognizes the gentle lady from Iowa, Dr. Miller makes for five minutes for her questions.
▶ 2:11:07Thank you so much, uh, Chair Palmer, and I thank all our witnesses for being here. Uh, as the representative from Iowa, I take seriously our responsibility to protect public health and the environment while also ensuring that federal policies are fair, clear, and feasible. In Iowa, clean water affects our farmers, our rural communities, our drinking water systems, and our local employers as well as families.
▶ 2:11:30Many of the entities now worried about the circle of liability like water utilities, wastewater facilities, landfills and farmers who responsibly apply bioolids did not create PAS but could still be swept up in liability scheme that is retroactive, strict, joint and several cost to passive receivers is only one piece of the problem here.
▶ 2:11:52We should also explore options that support swift remediation and provide the liability certainty necessary for American industry to focus on solutions that allow them to continue to invest in the US rather than endless courtroom battles. At the same time, we should be encouraging innovation and American ingenuity. Iowa agriculture is already helping lead the way with promising alternatives to PAS, including soybased fire suppressants made from soybean meal.
▶ 2:12:19These kinds of homegrown solutions can reduce reliance on legacy chemicals, create new markets for farmers, and strengthen our economy without heavy-handed mandates from Washington. Miss Bodí, your testimony suggests that insignificant or inadvertent contributors may spend more on lawyers and consultants than on actually addressing PAS contamination.
▶ 2:12:41Can you explain how Circle's joint and several liability structure incentivizes litigation over cleanup and what that means for small businesses, farmers, and local governments? Yes, thank you for that question.
▶ 2:12:55the um in in the context of say an EPA cleanup, they're only going to sue large parties, but the statute gives the parties that EPA sues the ability to turn around and sue anyone else who may fall within a category of liability circle, which is very, very broad.
▶ 2:13:17And those people then spend years I my testimony talks about you know seven years nine years to to get out of the cases and when they finally settle their piece of the liability might be tiny but those seven years of litigation costs will be huge. Uh thank you for that.
▶ 2:13:39I also um with having Rock Island Arsenal and the Iowa Army Ammunition Plant in my district, I'd like to echo Representative Fluger's comments regarding military installations. That is a uh I think a concern to all of us. Mr. and so I won't ask that question. Mr. Falby, uh from your members experience, how has the PAS designation already affected phase one environmental due diligence, financing, and insurance for commercial real estate projects?
▶ 2:14:08and what does that mean for redevelopment, housing construction, and job creation in local um communities?
▶ 2:14:14Yes, thank you for that question. Um we've talked a lot about clean water this morning. Everybody is in favor of clean water. Everybody is also, I believe, in favor of brownfield redevelopment. So, it's important to be able to redevelop infill properties that are contaminated. And what we're asking for in terms of a circle of liability, enhanced protection doesn't mean those sites will not get cleaned up.
▶ 2:14:38In fact, I think it paves the way for that kind of redevelopment because the concern is the unlimited circle of liability, the the fear of having to write a blank check and pay lots of lawyers, right, to litigate circle of liability. So, I think um you know, phase one environmental site assessments are great. They're just a look. There's no testing involved.
▶ 2:14:59uh it's still an evolving industry and just simply the fear that POS or POA may be on a site not even caused by anything on that site but maybe by surrounding properties or air deposition or other issues like that. Um it it creates a a great degree of uncertainty and as I said before the market investors hate uncertainty. I think brownfield sites are best cleaned up at the state level where you can get closure without um that circle
▶ 2:15:30Mr. Mihan, the EPA has issued enforcement discretion guidance stating it will not pursue certain categories of passive or public service entities such as water utilities and wastewater systems. Why does this guidance fail to provide real certainty for those entities and why is congressional action necessary to protect them from third party lawsuits? I'll get it right eventually.
▶ 2:15:54Um I I'll echo uh our colleague Susan Boddine that it guidance like that applies only to the agency, not to the twothirds of other litigants who are potentially responsible parties who can uh drag in a utility or any other uh potentially responsible party under the four categories. U so you know that doesn't work.
▶ 2:16:15And I also cited earlier, I don't know if you're in the room, but uh there's a case in New Jersey involving Pacific Valley Sewage District and uh EPA actually uh brought them into litigation the hope of giving them a get out of jail free card through a settlement. 10 years later, they're still in the litigation because of uh opposition from the other some of the major PRPs and there's collateral litigation has spun out of that.
▶ 2:16:41So, it's a it's a sticky wicket and quite frankly, uh, no lawyer I talked to and and EPA to their own credit is just trying to do the best they can. So, but it's not a solution at all.
▶ 2:16:53Thank you. Uh, I yield back. Thank you, Mr. Chair.
▶ 2:16:56Gentlewoman yields. The chair recognizes gentleman from Louisiana, Mr. Carter, for five minutes for his questions.
▶ 2:17:02Thank you, Mr. Chairman. Protecting communities from PAS, so-called forever chemicals, is a matter of public health and environmental justice. PASS are made man-made chemicals that do not break down in the environment or the human body. They accumulate over time in our water, soil, and bloodstreams. They're linked to serious health harms, including cancer, reproductive complications, and weakened immune systems and children, among others.
▶ 2:17:31Nowhere is this issue more urgent than in face fence line communities, especially in places like the one that I represent, Louisiana, which has the unfortunate moniker of cancer alley, where families live next door to prochemical plants and industrial facilities. These communities black workingclass already face higher exposure to toxic air and water pollution.
▶ 2:17:56PAS contamination only compounds those Strong federal protections matter because PAS pollution doesn't respect state lines. We need clear standards, rigorous monitoring, and enforcement authority.
▶ 2:18:12I understand that there are real concerns about liability for so-called passive receivers, entities that may receive hazardous substances, including PAS, through wastewater or recycled materials, but do not manufacture and use those substances themselves. I want to continue working with this committee on that issue, but in a way that doesn't weaken protections, but strengthen them for the communities that are most impacted. Rolling back ruse doesn't make chemicals safer.
▶ 2:18:42It just makes exposure easier and accountable accountably harder. For communities like mine, delays mean more years of exposure, more preventable illnesses, and more families forced to choose between staying in their homes and protecting their health. Miss Donovan, can you describe how PAS contamination has affected your community's health? access to clean drinking water and overall quality of
▶ 2:19:14Yeah. And I'm so glad that you brought up the point about fence line and frontline communities um and the environmental justice concerns because there is the cumulative impact of all of this that um that needs to be addressed. Uh there is a a community that lives right beside the Samson County landfill which is where Kamores sends its waste or it was documented as sending its waste for a very long time.
▶ 2:19:40This community is not only now dealing with um contamination problems coming from this this waste landfill, but they're also dealing with hog farm waste that they've had to litigate. they are constantly in litigation to just to try and protect their way of life and where their zip code is and it's not fair.
▶ 2:20:00Um, we have private well owners in Brunswick County that are just now finding out that their wells were contaminated by Kors seven years later all the way 90 it was 80 to 90 miles downstream from the actual facility and it was because the um had contaminated water which is now contaminated the groundwater of the area.
▶ 2:20:26Think golf courses, think um think think just irrigation, think all of that. And we are working through we um but the um the state environmental department is working with Kors through the consent agreement to force Kamores to pay for that cleanup. We are seeing communities, there's a um a black community, a predominantly black community called Rock Hill in Wilmington, North Carolina.
▶ 2:20:51And when developers come in and create new homes, they are bypassing the ability to give these this community access to municipal water that is cleaner than the groundwater that has been contaminated again by PAS. And so there is a struggle and a fight to make it equitable and just for this community to access a better a better opportunity for water now that it's available.
▶ 2:21:17Can I interrupt you just for a moment because I only have a few seconds left and I really want to ask you about Rick Rah. Um we know that the Resources Conservation Recovery Act under the uh the Biden administration was working toward um coming up with ways to deal with this. How would Rickra um cradle to grave waste management model provide your community with a sense of security knowing that POS waste are properly managed and maintained through the life cycle?
▶ 2:21:45Yeah, I mean we have uh you we know that there are tanker trucks that leave Kamores constantly. We've seen spills that have happened, but they don't get reported. It's been voluntary um eye on the ground observation from the very communities that's being contaminated with the air releases that are having to call regulators and say, "Hey, you know, we took some pictures of this um of this spill. You know, that would have been documented." Um, we also worry again like where is the land application of the sewage sludge that we know is contaminated?
▶ 2:22:14Where is that going? Um, there needs to be a a whole system to understand that. And again, this isn't an issue about liability
▶ 2:22:22and and my and my time is expired as I do, Mr. Chairman. I just want to close with this. We know this that if the big polluters are left to their own devices, they won't report. they'll continue to do take the path of least resistance which is to continue to contaminate communities. That's why committees like this and people like you coming to testify strengthen our hand in making sure that we are insisting that if coexistence is to happen can only happen when communities are made safe. Mr.
▶ 2:22:52Chairman, thank you for your generosity and time. I yield.
▶ 2:22:55Gentleman yields. Chair now recognizes the gentleman from Georgia, Mr. Carter, for five minutes for his questions.
▶ 2:23:01Thank you, Mr. Chairman. This is an certainly an important hearing and Mr. Chairman I applaud you and thank you for holding it. um the impact of EPA's circla designation for the two POS chemicals. POS in the you know we've established the fact that POS is used in a number of different areas and in a number of different things and consumer products and industrial purposes and there and oftent times they're used in life-saving devices, electronics and firefighting foams and
▶ 2:23:31I'm going to touch on that in just a second. But while they're essential for everyday life and many life-saving devices, it's a very complex nature makes the cleanup and the disposal difficult. So, I want to talk about the practicality of how we deal with this. I'm I'm not denying we need to deal with it. I I'm just I want to talk about the practicality. Mr.
▶ 2:23:52Mihan, I want to ask you, how do you expect cleanups timelines or do you expect cleanup timelines to slow because parties simply don't have any place to put the soil, the residue, the water that now must be managed as potentially circuit triggering waste?
▶ 2:24:13Well, if you're talking about the waste or residue or bioolids from water and wastewater utilities, that's a real problem. and EPA hasn't really uh come down on what's the preferred technology. So basically it's a sort of an ad hoc decision for each utility. Do you store it on site? Do you incinerate it? Do you send it to a hazardous waste landfill rather than a mun landfill? Big cost differential. So right now it's um it's cats and dogs how we're going to do it.
▶ 2:24:42Now if you're talking about a super fund cleanup, those are historically
▶ 2:24:46you know 20 25 30 years. Yeah. No, I I absolutely there are still m mining sites out west. Um I mean Susan Boddine can address that much more eloquently than I, but they're they're longhaul cleanups, longhaul projects.
▶ 2:25:03Well, given the um excuse me, given the significant liability uncertainty, the limited disposal options, and the broad range of parties that are potentially exposed, what do you think the top um steps are that EPA could take? what what could they do?
▶ 2:25:20Um I I you know the technology may just have to evolve to a greater level. Also the EPA is going to have to maybe factor in some risk versus risk considerations that is storing on site better than sending it maybe to uh an incinerator? Well, personally I don't think so. But there are consequences and people aren't thrilled about having a new incinerator in their county. So, it's going to be very difficult, as I say, case by case sorting this out and and whether technology will save us.
▶ 2:25:51Uh, I know there was a citation from Violia about their disposal, but I I've been through the era of incineration for hazardous waste as a state official and nobody's happy with it. Nobody's happy with it. I want the regulator to be a land use authority. So,
▶ 2:26:05Miss Boddine, you have anything to add to that?
▶ 2:26:07Um, yes. EPA out of their um office of land and emergency management really does need to provide guidance. That's a riskmanagement approach. We can't take you know a you know the office of water did a risk assessment that said you know 01 parts per trillion that's not risk management. You need to say okay
▶ 2:26:25and states are already stepping out and doing this. Okay you can land apply these residuals at you know most states have said okay 20 parts per billion. That's a lot different than 0.01 parts per trillion that you know that the office of water risk assessment would suggest. So you just need to have a practable consideration that takes into account where is there really exposure and and provide real guidance.
▶ 2:26:48The guidance that's out there the most recent update was 2024 says if you have higher levels use uh technologies that have a less chance of of release and that would be incineration depot uh injection and hazardous waste landfills. the most expensive technology.
▶ 2:27:05Okay, I've got a minute left and I want to get to this. Miss Bodine, I want to ask you about the the foam that airports use to put out fires. If I have a loved one on a plane, I want that fire put out as soon as possible, as quickly as
▶ 2:27:18Then what about the liability the airports are are put under whenever they're using this? And yet now it it's being regulated this way. Yeah, the airports were actually compelled by law to use the same um firefighting foam that met the military specification which for years and years included PIO and PAFOS the AF foam and yes they are now being sued and the real question is if you know is that fair because as as you pointed out they're saving lives and two they
▶ 2:27:48were actually compelled by law to use it and so I think that's an example where they are recognized as an equitable consideration an entity that should not be targeted for enforcement under EPA's enforcement guidance. And if somebody's well is contaminated because of firefighting form, then EPA should use its own resources provided by the trust fund and and clean it up without suing any.
▶ 2:28:11Okay, I'm out of time, but thank you all for being here. This is extremely important and I yield back.
▶ 2:28:16Gentleman yields. Chair now recognizes gentle lady from Michigan, Miss Dingle, for five minutes for her questions.
▶ 2:28:23Thank you, Mr. Chair. As co-chair of the bipartisan PAS task force, I want to start off with some facts. PAS contamination is a nationwide environmental and public health crisis. It impacts our air, our soil, our water, our food systems, and consumer products. EPA's authority under the federal super fund law circla is essential to addressing it. For decades, PAS was used widely. We acknowledge it.
▶ 2:28:53But these chemicals are linked to cancer, infertility, immune dysfunction, and developmental harm. And they persist in the environment for generations. Nearly every American has PAS in their blood. 97 to 99%. And today, we know with certainty that PAS is harmful and communities in every state have been impacted. I've led the fight in Congress to confront this crisis.
▶ 2:29:20I lead I've led the bipartisan PAS action act which passed the house twice and what codified the designation of POS and PO as hazardous substances until s substances under super fund set in statute a national drinking water standard limit industrial discharge and strengthen cleanup authority I've introduced legislation to eliminate PAS from cosmetics food packaging firefighting turnout
▶ 2:29:50gear and other products. Earlier this year, I've led the bipartisan letter to EPA urging the EPA to uphold circla designation for POS and PO to reject efforts that would weaken super fund accountability. Rolling back circa won't reduce the liability that everybody's worried about. Instead, it's going to shift cost to the tax power taxpayers and allow contamination to spread.
▶ 2:30:19While EPA's circuit designation per POS and PIO remains in place for now, it's under continued pressure from industry and others seeking broad exemptions, including for so-called passive receivers. And I want to be clear, this isn't a small group of entities seeking exemptions like municipal utilities and treatment plants.
▶ 2:30:41It's a much larger universe, including secondary manufacturers, industrial recycling facilities, and infrastructure construction groups. The topic today is about picking who does and doesn't have to play by the rules, and I'm deeply concerned that these proposals risk undermining the very purpose of super fund. Weakening circular authority delays remediation, increased costs, and leaves communities exposed. It isn't a partisan issue.
▶ 2:31:10It exists to protect people and hold polluters accountable. So, I want to ask um Miss Dunovan some questions. I want to be clear about what the exemp exemptions being discussed at this hearing would accomplish. So, I have yes and no questions. Miss Donovan, would super fund exemptions remove PAS from water, soil, air, or consumer products? Yes or no?
▶ 2:31:34No. Miss Dunovan, would super fund exemptions do anything to clean up contamination in impacted communities? Yes or no?
▶ 2:31:44Miss Dunovan, would super fund exemptions make any meaningful steps towards getting boots on the ground to clean up the contamination in Capefir or other sites around the nation? Yes or
▶ 2:31:56No. Miss Donovan, would super fund exemptions help any of the families who are being impacted by health issues caused by FIFA FAST exposure? Yes or no?
▶ 2:32:08So, I'm going to ask you one more question. I am worried about if I have a family on a plane and you want something, but they are creating other ways to deal with it. Should firefighters who are keeping us safe every single day, would this exemption help them get PAS out of their gear and other things that they're doing to protect us?
▶ 2:32:30No. So, thank you to the witnesses for being here today. The risks posed by PAS are real and serious and weakening circla would not protect communities. It would expose them to further harm. This committee has a responsibility to deliver real enforcable solutions that protect public health and stop the spread of PAS contamination nationwide.
▶ 2:32:53I urge my colleagues to take up the bipartisan PAS action act and take real and meaningful steps to address the full scope of the PAS problem. Let's show the American people we care. Let's show them we know it's in your blood and we don't want it to harm you. With that, I yield back, Mr. Chair.
▶ 2:33:10Gentleoman yields. Chair now recognizes gentleman from Colorado, Mr. Evans, for five minutes for his questions.
▶ 2:33:16Thank you, Mr. Chairman, to the ranking member, and of course to the witnesses for coming today. Um, my first question will go to Mr. Mi. Uh, in the, you know, several decades ago, uh, in Colorado, uh, we had the location of the old Denver International Airport, which has since moved. It's several miles, uh, to the east now. Uh but decades ago, the old Denver International Airport used uh PAS in the firefighting foam uh for public safety to keep the airport safe. Uh and it's since moved decades ago.
▶ 2:33:45Uh but my district is downstream of the old airport that um again has that uh that PAS load in the soil and the surrounding areas. Uh and so that uh rinses downstream to my district um to places like uh the largest city in my area, Thornton, Colorado, which right now is being forced to raise water rates uh on my constituents to pay an extra $2.6 million a year for the treatment costs of PAS, which is coming from a site
▶ 2:34:15that no longer exists decades ago that they have no control over because it's upstream of their jurisdiction. And I'll remind my colleagues on the other side of the aisle that when we raise rates on consumers, when we increase the cost of living, that increases the rates of poverty. And poverty also has a negative health outcome and causes real uh real harm.
▶ 2:34:36So my my question to you, in your testimony, you warned about the dangers of additional costs that water utilities could be forced to pay in the form of cleaning up contamination that they did not create. Can you share some more insight into the economic impact that the current system could have on water utilities big and small if Congress doesn't take action to remove liability from the Thornton uh water treatment plant for PAS that happens decades ago that they did not create?
▶ 2:35:03Well, the cost to rate is a cumulative effect. It's inflation, it's materials, it's uh the lead and copper rule, it's the PAS rule, it's aging infrastructure. I mean, pick your poison. Uh, and you added just another, I won't say needless burden, but uh, put it this way, an unjust burden on a utility to clean up something for which they were not responsible. It's just aggravating the situation.
▶ 2:35:32And it's really makes it difficult when you go to a a public hearing to uh ask for a rate increase when uh when when you have to point to things that you're really not responsible for, for which you're are being held responsible.
▶ 2:35:45Thank you. going to uh to Mr. Falby. Uh we just heard about the impact that remediation would have on water utilities and you yourself noted in your testimony that PAS is expensive to remediate. Um but I'd like to get some more uh some more context. Um what is the cost and the challenges of remediating PAS versus other hazardous
▶ 2:36:06It's extremely expensive to test for. Uh you have to take special precautions. The fact that PAS is so ubiquitous in the environment and is, you know, viewed as impactful at super low concentrations, parts per trillion with a T makes it very hard to test, which makes it more expensive and then certainly harder to remediate and there's not a lot of great solutions to remediate P5+ at this point. I hope that in the future technology will come to the rescue, but for right now it remains very expensive.
▶ 2:36:34So would it make sense rather than penalizing local municipalities, small operators again for pollution that they did not create to take a broader, more expansive view of this so that we can again we all want clean air, cleaned land, cleaned water, but penalizing the little guy for pollution they didn't create? Does that seem like a fair approach to you or should Congress act in this space to come up with that bigger global
▶ 2:36:58Congress should act. It's not fair and we have to remember the circle is the poller pays statute, right? They made a policy decision that passive land owners, current land owners of contaminated property should be held liable 45 years ago. I would suggest with PAS because of its uniqueness, its pervasiveness in the environment and the low threshold for cleanup, we need an
▶ 2:37:19Thank you. In my final 55 seconds here, Miss Mo, excuse me, Miss Bodin, uh, like a lot of other regulations under the previous administration that are heavy-handed and have unintended consequences, uh, CILA today is being challenged in the US Court of Appeals for the DC Circuit by the US Chamber of Commerce and several trade associations. Uh, what should EPA or Congress do if that rule is vacated in litigation by the DC court? 32 seconds.
▶ 2:37:46So I I think that um EPA has other authorities some of which have discussed here today which can they can use to target who they could target whatever is causing the real problem. Rickra can go after chemical manufacturers like commerce uh TUSCa can uh prevent new uses of of chemicals and and already has banned pop.
▶ 2:38:10So circle is not really the the best tool because for all the reasons we've discussed here today and there are other tools out there to address actually the problems that people have said they want to address.
▶ 2:38:21Thank you. My time's expired. Yield
▶ 2:38:23Gentleman's time is expired. I'd like to thank our witnesses for being here today. Members may have additional written questions for you. I'll remind members that they have 10 business days to submit additional questions for the record. and I ask that the witnesses do their best to submit the responses within 10 business days upon receipt of the questions. I ask unanimous consent to insert in the record the documents included on the staff hearing documents list. Without objection, that will be the order. Without objection, the subcommittee is adjourned.