Manko, Gold, Katcher & Fox Partner Robb Fox Testifies on PFAS before the Senate Committee on Environment and Public Works

March 21, 2024
Robert D. Fox, Esq.
MGKF Special Alert

Fox testifies at Senate hearing

On March 20, 2024, MGKF Partner Robb Fox testified at the United States Senate Committee Hearing of the Committee on Environment and Public Works on “Examining PFAS as Hazardous Substances.” He testified on behalf of the National Waste & Recycling Association and the Solid Waste Association of North America. The purpose of the hearing was for the Senators to receive stakeholder testimony regarding the impacts of the Environmental Protection Agency’s (EPA’s) proposed designation of PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

Testifying along with representatives of wastewater and water utilities, Fox advocated for an exemption from PFAS-related CERCLA liability for municipal waste landfills. Landfills did not manufacture PFAS compounds, but rather were passive receivers of PFAS in virtually everyone’s household waste, including in discarded products such as dental floss, carpets, nail polish and non-stick cookware.

The proposed exemption would not apply to liability for PFAS contaminated groundwater due to landfill operations, but rather to liability, retroactively or prospectively, for the discharge of landfill leachate that was or is permitted under applicable law.

In support of the exemption, Fox testified:

  • In 44 years since CERCLA was passed, EPA has never designated a hazardous substance, as it intends to here, before designating the substance under other environmental laws;
  • EPA’s proposal to exercise enforcement discretion will be insufficient and will not protect passive receiver landfills from CERCLA claims by third parties;
  • Absent an exemption, landfills will restrict inbound waste with elevated levels of PFAS including biosolids, contaminated soil from CERCLA sites, and spent water filtration systems;
  • As a result, the well-established municipal waste infrastructure in this country will be disrupted, with certain wastes having no place to go;
  • Increased costs of having to transport and dispose of certain waste at hazardous waste facilities (where there is limited capacity) will turn CERCLA’s “polluter pays” policy into a “community pays” reality with rate payers and taxpayers bearing the burden;
  • The proposed exemption is consistent with the eleven other statutory exemptions Congress created over 40 years for parties as diverse as lenders, brownfields developers, recyclers and residential and small business generators of household waste.

A copy of Fox’s written testimony is available here.  The complete hearing video is available here.