May 23, 2023 | Composting, Policies + Regulations, Soil Health

Senate Bill Would Exempt Composters From Federal CERCLA Liability

Top: Photo by Doug Pinkerton

U.S. Senator Cynthia Lummis (R-WY) introduced five bills to ensure industries and municipalities are not subject to liability claims if the U.S. Environmental Protection Agency (EPA) designates per- and polyfluoroalkyl substances (PFAS) compounds as hazardous substances. The exempted entities in these bills either do not contribute to PFAS contamination or are required to use PFAS-containing substances through regulations. Lummis introduced this legislation in response to an August 2022 proposed EPA rule to designate two PFAS compounds — PFOS and PFOA — as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund. The proposed rule would subject any entity with PFAS contamination to potential CERCLA liability from the EPA and third parties. Composting facility operators and others in the waste and wastewater sectors consider themselves “passive receivers” of PFAS-containing material. Should this EPA CERCLA rule be finalized, “passive receivers” would be held liable for PFAS contamination they are not responsible for.

“There is no doubt we need to consider the environmental impacts of PFAS chemicals but suing entities who did not contribute to the contamination is overkill, especially considering some of these entities, such as ranches and water facilities, are just downstream receivers,” said Senator Lummis. Compost manufacturers are covered in Loomis’ Senate bill titled, ‘‘Resource Management PFAS Liability Protection Act of 2023.’’ The legislation states that “no person….may recover costs or damages from a protected entity under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 13 et seq.) for costs arising from a release to the environment of a covered perfluoroalkyl or polyfluoroalkyl substance.” This includes “the application or processing of compost in accordance with State law.”

Jeff Ziegenbein with the Inland Empire Utilities Authority, and treasurer of the US Composting Council (USCC), testified at a Congressional Briefing for the Senate Committee on Environment and Public Works about CERCLA liability in relation to compost manufacturers. “The US Composting Council is in full support of Senator Lummis’ efforts to carve out a legislative solution by exempting passive receivers from PFAS CERCLA liability,” explains Frank Franciosi, USCC’s Executive Director. “America’s compost producers are stewards of the environment that provide essential services to both the private and public sectors. Composting and compost application play an important role in this nation’s resource management strategy. This bill keeps the promise that the ‘polluter shall pay’ model intact.”

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