Lawmakers, Trump agencies set for clash over chemicals in water

An aggressive push by Congress to pass bipartisan legislation addressing cancer-causing chemicals that are leaching into the water supply is setting the stage for a fight with the Trump administration.

The chemicals, commonly abbreviated as PFAS, are used in items ranging from food wrappers and Teflon pans to raincoats and firefighting foam. But studies have found that as they break down and find their way into drinking water, they can cause a variety of negative health effects.

PFAS has been linked with kidney and thyroid cancer along with high cholesterol and other illnesses. Contamination has spread to 43 states, and a 2015 study found 98 percent of Americans tested now have the chemical in their blood.{mosads}

But the bipartisan push to tackle the problem is setting up a clash with agencies, in particular the Environmental Protection Agency (EPA) and Pentagon, that have been resistant to regulating the chemicals.

Members of Congress have introduced at least 20 bills this session to address PFAS in some form, a record number and a sign of the growing concern.

“It has the most bills because we are now fully aware of the risks and how extensive the contamination is,” said Sen. Debbie Stabenow (D-Mich.), whose home state is believed to have the most severe PFAS contamination in the U.S. thanks to Michigan’s long manufacturing history and PFAS’s use on military sites.

PFAS appears in a staggering number of products, and that production, along with heavy use of firefighting foam by the military and at airports, are the main sources for the contamination.

Stabenow has sponsored two bills on the topic this year. The broad package of bills in both chambers include measures that would require EPA to set a drinking water standard for PFAS, set deadlines for cleaning up PFAS contamination caused by the federal government, allow the use of Superfund cleanup funds to deal with PFAS contamination, establish a ban on new PFAS chemicals, and provide funding to clean up already-contaminated water. Senators have added some similar measures to this year’s defense spending bill.

Committee chairpeople in both chambers dealing with PFAS legislation have called the bills a priority.

But there remain some tough sticking points, such as whether to address all 4,700 varieties of PFAS or just the handful that have been rigorously studied. Lawmakers, particularly Republicans, are concerned Congress may overstep its authority by jumping ahead of the EPA’s own scientific review. And there’s also disagreement over how to hold companies and even the government liable for cleaning up contamination.

Senate Environment and Public Works Committee Chairman John Barrasso (R-Wyo.) said he’s concerned about imposing liability on companies that used products containing PFAS for decades in good faith.

“Our nation’s airports, refineries, and others used fire-fighting foam containing PFAS in order to protect their workers and the public at large,” Barrasso said this week before reviewing several bills. “All these entities were either following regulations or the industry’s best practices.”

The chemicals industry wants the government to tackle each PFAS chemical individually.

Kimberly Wise White, senior director of chemical products and technology with the American Chemistry Council, told the Senate Environment and Public Works Committee this week that some forms of PFAS are not water soluble and should not be blamed for drinking water contamination.

“You can’t treat all these PFAS chemistries the same. That’s why you can’t have a one-size-fits-all approach,” she said, citing the broad approach of some bills.

A bill from Sen. Kirsten Gillibrand (D-N.Y.) would require the EPA to set a drinking water standard for all PFAS, and there’s similar legislation in the House. Others would ban new uses or development of PFAS chemicals.

Environmentalists argue the chemicals will continue to spread without sweeping action.

“If we don’t regulate them as a class, we’re going to be on this treadmill of trying to regulate one at a time, and we’ll never get off of it,” Erik Olson, the health program director at the Natural Resources Defense Council (NRDC), told House members at a hearing earlier this month.

Some Republicans worry taking sweeping action would sidestep the EPA and force Congress to weigh the science, and potentially invite lawsuits from companies.

“States would face significant unfunded mandates, while foisting obligations on private parties who are currently unaware of potential liability — like farmers using biosolids from wastewater treatment facilities to improve soil health,” Rep. Greg Walden (Ore.), the top Republican on the House Energy and Commerce Committee, said at a recent PFAS hearing. “All of this is likely to result in litigation to prevent or prolong the situation, rather than move to promptly address contamination.” 

Democrats have not yet committed to regulating all classes of PFAS, instead asking experts like Olson to weigh in, but there is broad consensus that the EPA response to PFAS has been lacking.

“EPA has given us little reason for confidence that they will act with the urgency that impacted communities know is needed,” said Rep. Paul Tonko (D-N.Y.), lamenting that it would be years before the agency can set a drinking water standard. “One thing is clear: We cannot wait for EPA to act.”

EPA will decide by the end of the year whether they want drinking water standards for PFAS, what is known in the agency as a maximum contamination level (MCL).

But critics of the agency say they’ve been dragging their feet on a decision that should have been made shortly after the Obama administration recommended in late 2016 that water should not contain more than 70 parts per trillion (ppt) of PFAS.

The EPA declined an interview request for this story and would not comment on any pending legislation.

In the absence of action from EPA, eight states have passed their own drinking water standards, many of them lower than the 70 ppt level that EPA recommends.

Rep. John Shimkus (R-Ill.), ranking member of the House Energy and Commerce Subcommittee on Environment and Climate Change, said Democrats were rushing to regulate PFAS by legislative fiat rather than giving EPA time to review the chemicals.

“We cannot only support the use of science or public input when it guarantees our preferred policy solution,” he said in a mid-May hearing on PFAS, saying that role should lie with EPA and not Congress.

Shimkus is inclined to support some of the bills, but added, “I have too many questions about the wholesale regulation of this large class of chemicals.”

The EPA is not the only agency to come under fire for moving slowly on PFAS.

The Department of Defense (DOD) is facing a $2 billion cleanup tab, and senators have expressed concern over behind-the-scenes maneuvering from the Pentagon to get EPA to scale back future PFAS regulations and save the military millions of dollars.

Some worry the military won’t clean up the chemicals without a push from Congress.

“I think a lot of us learned in kindergarten that if you make a mess, you clean it up,” said Olson with the NRDC. “Maybe the Department of Defense didn’t learn that lesson in kindergarten and a lot of polluters did not … It’s important to hold those polluters accountable, whether they are federal agencies or private companies.”

The Pentagon would not comment on pending legislation but denied the military has tried to weaken EPA’s approach and said they support EPA setting cleanup standards.

“DOD is not seeking a different or weaker cleanup standard but wants the standard risk-based cleanup approach that is based on science and applies to everyone,” said Pentagon spokeswoman Heather Babb.  

Congress secured some funding for cleanup last year, though not enough to tackle the problem. This year’s budget would also include funding, though several other bills more specifically outline the military’s obligations for cleaning up contaminated water.

Stabenow, alongside Sens. Marco Rubio (R-Fla.) and Gary Peters (D-Mich.), sponsored one such bill, dubbed the “PFAS Accountability Act.” It would give the military a year to develop a cleanup plan with the state requesting it, and access to grants to help fund the process. If the military misses that deadline, they have to report to Congress.

The latest version of this year’s defense budget would include a measure similar to Stabenow’s and also bar DOD from using firefighting foam that contains PFAS.

Finding a consensus on how to push EPA and the Pentagon, though, will be a challenge.

“This is very expensive and pretty much connected to every military base,” Stabenow said of the contamination. “We want to hold them accountable and move forward to address this.”