WATCH: In Senate EPW Hearing, Kelly Presses for Action on PFAS Cleanup Delays to Protect Arizona’s Water
This week, during a Senate Environment and Public Works (EPW) Committee hearing, Arizona Senator Mark Kelly pressed for action to address PFAS contamination threatening groundwater supplies across Arizona, particularly in fast-growing and drought-stricken communities that rely heavily on aquifers for drinking water.
Kelly highlighted the severe impact PFAS has already had on Arizona’s water systems: “In Arizona, in the face of long-term drought, groundwater remains a critical source of drinking water for so many communities across our state and many of those communities even bank water underground to prepare for future shortages. But now we face a serious challenge from PFAS contamination in many of those aquifers. In Tucson, for example, PFAS forced the city to shut down nearly 30 groundwater wells, resulting in more than $71,000,000.00 in clean up and treatment costs. Clearly, there is a problem here that we need to solve. CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act), as was previously mentioned, sometimes known as the Superfund law, has shown promise as a tool to address these challenges.”
Kelly warned that the Department of Defense has continued to stall, delaying cleanup efforts in Arizona and across the country: “Last October, EPA approved an Air Force plan to ensure safe drinking water and undertake PFAS cleanup efforts in Tucson, where my wife and I live and my granddaughter lives. Under that agreement the Air Force will work with the City of Tucson to investigate PFAS releases from nearby facilities, yet the Department of Defense is still dragging its feet, delaying this and other cleanups nationwide for years. Without CERCLA though, these cleanups might not happen at all.”
Kelly also joined 27 of his democratic colleagues in demanding that the Trump administration reverse its decision to delay the cleanup of PFAS at military installations across the country and take action to protect military families and nearby communities by addressing contamination at the affected sites. Earlier this year, Kelly also introduced bipartisan legislation to address PFAS contamination in private wells.
Sen. Kelly questions witnesses at a Senate Environment and Public Works (EPW) Committee hearing.
Click here to download a video of Kelly’s remarks. See the transcript below:
Sen. Kelly: Thank you, Madam Chair. And thank you, all of you, for being here today.
As I’ve discussed this committee previously, remediating PFAS (polyfluoroalkyl substances) contamination in Arizona’s aquifers is an urgent priority, and I was happy to be here during Senator Alsobrooks’ questions. I’ve got a couple more on the topic.
In Arizona, in the face of long-term drought, groundwater remains a critical source of drinking water for so many communities across our state and many of those communities even bank water underground to prepare for future shortages.
But now we face a serious challenge from PFAS contamination in many of those aquifers. In Tucson, for example, PFAS forced the city to shut down nearly 30 groundwater wells, resulting in more than $71,000,000.00 in clean up and treatment costs. Clearly, there is a problem here that we need to solve. CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act), as was previously mentioned, sometimes known as the Superfund law, has shown promise as a tool to address these challenges.
Last October, EPA approved an Air Force plan to ensure safe drinking water and undertake PFAS cleanup efforts in Tucson, where my wife and I live and my granddaughter lives. Under that agreement the Air Force will work with the City of Tucson to investigate PFAS releases from nearby facilities, yet the Department of Defense is still dragging its feet, delaying this and other cleanups nationwide for years.
Without CERCLA though, these cleanups might not happen at all. So, my question to each of you is: is CERCLA the proper tool to address our nation’s PFAS contamination problem? And if it isn’t, what authorities should Congress leverage instead? We’ll start with Mr. Gerstenberg.
Eric Gerstenberg, Co-Chief Executive Officer of Clean Harbors: Thank you, Senator Kelly.
We believe that CERCLA is a good foundational tool to be able to address it, and similar stances of the RCRA (Resource Conservation and Recovery Act) regulations that were put in in 1976. We also believe that it is time to act it. It is time to put thresholds and contamination levels in place by the EPA, such that the bases that you were just referring to, need to act so it just doesn’t sit there, contaminating drinking water in the ground. We believe that there is a way to act, there is a safe way to manage and treat the water cost effectively, and dispose of it, and clean up these sites. But we think those thresholds of contamination levels, based on what that has been exposed to, needs to be enacted and put in place, so that Department of Defense military installations will act accordingly.
Sen. Kelly: So CERCLA, you think is the right thing, you just need the trigger to start using the tools that CERCLA provided. Ms. Pilconis.
Leah Pilconis, General Counsel for Associated General Contractors of America: Thank you, Senator.
My comment is simple or similar. Contractors are on the front lines of clean up and doing the remediation work. But for everyday infrastructure work, and for the work that we’re doing to repair and revitalize and rebuild our nation’s infrastructure, they’re incidentally encountering PFAS as a result of just doing that work. And CERCLA is making them potentially responsible for the full cost of cleanup because of the strict joint and several retroactive liability scheme. Right now, we have no lawful path to compliance. We have no numbers, we have no instructions or standards on how to dispose of material, we don’t have restricted uses, we have we have no unrestricted uses, we don’t know when we can reuse materials. So, we have the CERCLA scheme in place without having the proper road map to compliance. Which we have with other hazardous materials: lead, asbestos, PCBs. We’re in a very difficult and unique situation where contractors are exposed to extreme risk and liability. Contractors are touching soil and groundwater across America using many, many different landfills, so our risk is exponentially increasing.
Sen. Kelly: It sounds like you think we need something specific to PFAS, beyond CERCLA?
Leah Pilconis: We need a lawful path to compliance.
Sen. Kelly: Ms. Bowers.
Kate Bowers, Supervisory Attorney for Congressional Research Service: Thank you, Senator
CERCLA is one tool in the federal legal toolbox to address PFAS. It is the broadest mechanism under federal law for requiring parties to perform or pay for cleanup actions. There are other enforcement authorities that are also available under federal law and may be applicable in particular situations. You mentioned the Tucson site for instance. EPA, in addition to addressing issues under CERCLA at that site, has also taken action under the Safe Drinking Water Act. So that or other statutes may potentially be relevant. I would also note statutes that focus on regulatory and compliance issues, that establish permitting regimes and allow federal agencies or states to establish guidelines or requirements for entities that are potentially discharging PFAS into their environment as part of their operations, as well as statutes like the Toxic Substances Control Act that address manufacturing use of chemicals. These can all be relevant depending on what aspect of PFAS an agency is interested in addressing.
Sen. Kelly: Thank you, Ms. Bowers. Thank you to the three of you for being here.
