As Congress headed into conference last year to finalize the 2020 National Defense Authorization Act (NDAA), advocates of regulating hazardous PFAS chemicals were hopeful the defense budget could be a vehicle for Congress to act where the Environmental Protection Agency had been stalling.
As the new year begins, however, Congress has passed the NDAA without many of the provisions designed to limit and clean up PFAS contamination, leaving the future of PFAS regulation uncertain.
PFAS stands for per- and polyfluoroalkyl substances and refers to a class of chemicals linked to adverse health effects like increased risk of cancer and higher cholesterol.
Chemical companies like Dupont and 3M produce PFAS and the chemicals are used in a wide range of products such as food packaging, waterproof materials, carpeting, and firefighting foam on military sites.
According to a report by the Environmental Working Group, as many as 110 million Americans could have PFAS contaminated drinking water.
PFAS are commonly known as “forever chemicals” due to their persistence both in the environment and the bodies of humans and animals who ingest them. The Environmental Working Group estimates 99 percent of Americans have PFAS in their blood.
Regulatory provisions that did make it into the 2020 NDAA require companies to report PFAS discharges to the EPA and require drinking water utilities and the U.S. Geological Survey to monitor for the chemicals in drinking and groundwater.
“At least the EPA had to move out immediately to take comments and begin the process of having about 160 of these perfluorinated compounds reported on by industry,” Former EPA Administrator Betsy Southerland told The Globe Post.
Other measures cut from the final NDAA would have reduced the ongoing release of PFAS by ending the military’s use of the chemicals in food packaging and firefighting foam.
Further provisions would have designated PFAS a “hazardous substance” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), requiring the cleanup of PFAS in heavily contaminated areas like military sites.
The proposed measures also would have instituted a national standard for PFAS levels in drinking water.
While the new requirements included in the NDAA are a sign of progress in the effort to regulate the chemicals, Southerland said the failure to include other provisions for the cleanup and control of PFAS contamination was “discouraging” because it leaves any further regulatory action up to the EPA which has been slow to make any progress since releasing their “PFAS Action Plan” in early 2019.
“So now we’re pretty much just fully dependent on the EPA living up to their PFAS action plan,” Southerland said. “If there’s great urgency, which they said there was in this PFAS action plan, what’s causing the delay?”
The PFAS Action Plan stated the EPA would develop “toxicity values” for new PFAS compounds, under the Safe Drinking Water Act by the end of 2019.
From there, the EPA could use those toxicity values to determine a safe drinking water standard.
But the administration missed last month’s self-imposed deadline and still has yet to follow through on developing any new toxicity values.
Because the EPA is already falling behind the timeline of its action plan, Southerland expressed skepticism that it would follow through on its commitments in a timely manner and said the EPA is not currently committed to enforcing a national safe drinking water standard for PFAS.
That would leave it to states to determine their own safe drinking water standards.
“It’s an important part of the Safe Drinking Water Act because it acknowledges … that we need nationally consistent drinking water concentrations that are considered safe for all the states to be able to use,” Southerland said.
“If you … just keep throwing out toxicity values and not calculating drinking water health advisories, that means … every state in the country can take that toxicity value and derive an entirely different drinking water concentration that they consider safe.”
Beyond the EPA, Congress has the power to pass standalone legislation on PFAS.
But if the NDAA and recent statements from President Donald Trump are any indication, it’s unlikely further PFAS regulation will pass this year.
That hasn’t prevented the House of Representatives from passing standalone PFAS legislation by Democratic Rep. Debbie Dingell earlier this month.
Much like the scrapped PFAS provisions from the NDAA, the new House legislation would require the EPA to set a national drinking water standards for PFAS and enforce the cleanup of the chemicals by designating the chemicals a “hazardous substance” under CERCLA.
The bill also goes further than the scrapped NDAA provisions by imposing a five-year moratorium on the development of new PFAS, requiring the EPA to regulate air pollution by PFAS.
“The Defense Department won’t clean [PFAS] up because it’s not listed under CERCLA as a hazardous substance. But it is a hazardous substance and we know it,” Dingell said during a roundtable discussion on PFAS earlier this month.
“The CDC has studies that say [PFAS] has a lot of bad health effects. We need them to start cleaning it up.”
The roundtable preceded a screening of Dark Waters, a film on the “forever chemicals,” and included Actor Mark Ruffalo who stars in the film, as well as Vermont Senator and Democratic Presidential Candidate Bernie Sanders, who introduced a companion bill to Dingell’s in the Senate earlier this month.
“What we are seeing is large corporations dumping incredibly powerful toxic chemicals into our waterways and our air and causing very serious health problems,” Sanders said during the roundtable. “We have got to stand up to the polluters.”
On the Senate side, however, the chances of the bill passing are slim.
John Barrasso, the Republican chair of the Senate Environment and Public Works Committee, described Dingell’s bill as having “no prospects” and criticized it for being too broad.
The White House also released a statement declaring opposition to the bill citing fears the legislation would “undermine the public’s confidence in the EPA’s decisions.”