Lawmakers Slip Through Major Shift in Chemical Policy

It’s a rare show of bipartisan agreement on the environmental-policy front.

Sen. Ben Cardin watches as Sen. Gary Peters speaks during a news conference April 20, 2016.
AP Photo/Evan Vucci
Oct. 1, 2018, 8 p.m.

Congress is quietly pushing through some of the most ambitious measures to curb chemical contamination in years.

President Trump inked the Defense Department appropriations minibus Friday to avert a shutdown of federal agencies, and that bill included at least $45 million to help water utilities located near Air Force bases treat contamination tied to a major class of industrial chemicals.

The Environmental Protection Agency says at least one of those chemicals—known as per- and polyfluoroalkyl substances, or PFAS—causes cancer, but experts argue that the extent of PFAS contamination in drinking water and elsewhere is far from fully known. The chemicals are used in a wide array of products, from firefighting foams to nonstick cookware.

And now the president is gearing up to axe a requirement that airports use those chemicals in firefighting products. That language is riding along legislation to reauthorize the Federal Aviation Administration, which passed the House last week overwhelmingly and awaits a final sign-off from the Senate. The Senate passed a one-week stopgap measure for the FAA on Friday, but the bill isn’t expected to hit formidable hurdles.

That legislative action marks a rare show of bipartisan support on Capitol Hill—particularly on the environmental-policy front, which has sharply divided lawmakers in recent years.

“It’s an issue for the entire country,” Sen. Gary Peters, the Michigan Democrat who has been helping to lead the charge, told National Journal. “It’s going to be a multifaceted approach dealing with PFAS contamination. So you’re starting to see some concrete movement from the Congress.”

Nationwide reports of PFAS drinking-water contamination reveal similarities to the effects of lead poisoning, although the impacts are less severe to date. The new attention on this class of chemicals also harks back to concerns that prompted bans on manufacturing chemicals such as polychlorinated biphenyls.

Congress passed an update to the Toxic Substances Control Act in 2016 that gives the EPA more authority to regulate chemicals, but critics say the agency is failing to implement the law to best safeguard public health. And Congress is now taking up the mantle in a more targeted fashion.

The past two National Defense Authorization Acts gave the go-ahead on PFAS health studies, and the 2018 omnibus funding bill secured $10 million for that effort. The Defense Department kicked off that study last month by transferring the money to the Agency for Toxic Substances and Disease Registry, within the Health and Human Services Department, according to Sen. Jeanne Shaheen.

Military bases and airports are big sources of PFAS contamination on-base and in surrounding water systems because of the prevalent use of firefighting foams to put out aircraft fires. A recent Defense Department study identified more than 400 installations with known PFAS releases.

According to the EPA, PFAS “are persistent, and resist degradation in the environment. They also bioaccumulate, meaning their concentration increases over time in the blood and organs." The biggest-name chemicals in the PFAS class are largely phased out of production in the U.S., but still in wide use. Less harmful but equally effective alternative products are used in Australia and Europe, experts say.

On top of cancer risks, the EPA also links immune and thyroid effects and low infant birth weights to PFAS as a whole.

The EPA has issued a non-enforceable advisory against drinking water with more than a 70 parts per trillion concentration of two of the most well-known PFAS, perfluorooctanoic acid and perfluorooctane sulfonate. Early investigations at the ATSDR put that safety threshold far lower, and a broad group of advocates, including firefighters, agree.

But the EPA isn’t signaling a change in course.

“We are not planning currently to update our health advisories for PFOA and PFOS,” Peter Grevatt, the head of EPA's Office of Ground Water and Drinking Water, told a Senate subcommittee last week. “Based on the current science, we believe, the health advisory value that we’ve developed is supported.”

Still, Grevatt said the agency is now determining whether to label PFOA and PFOS as hazardous substances, which would require reporting from industry under the Superfund program and other laws. That process could take years, Grevatt said. And even a decision to slap that label on those two chemicals would fall far short of demands from the advocacy community and others close to the conversation over the years.

Rob Bilott, an attorney made famous by taking on DuPont in litigation over deliberate PFOA discharges in West Virginia, said the sluggish pace of regulatory action could spell disaster for communities across the country.

“The sooner there can be a switch away from the foams that contain these materials and get those stocks out of these airports and other places that have them, the better for everybody involved,” Bilott told National Journal. “It’s been something that’s kind of persisted, unfortunately, like the chemical, through several administrations.”

Bilott scored $671 million for his clients in litigation against DuPont and Chemours, a DuPont spinoff, last year. More litigation is currently underway.

But industry is continuing to fight. Sen. Tom Carper told the subcommittee last week that “representatives from a new industry group” told his office that “the weight of the scientific evidence does not show that PFOA or PFOS cause health effects in humans.” A spokesperson for Carper declined to release the letter, saying the office is continuing to look into it.

Meanwhile, states are beginning to act on their own. New Jersey is rolling out a series of regulatory actions on PFAS. Michigan state legislators urged Gov. Rick Snyder last week to crack down on PFAS contamination, according to local reports. Snyder faced a chorus of calls to resign in 2016 over lead contamination in the Flint, Michigan water supply.

And a summit concerning the Stockholm Convention on Persistent Organic Pollutants, an international pact, recommended in late September a global ban on PFOA, “its salts, and PFOA-related compounds.” The U.S. is one of only a handful of countries that has not ratified the treaty and entered it into force.

But back at home, in a fraught Washington political environment, advocates are cautiously applauding the legislative moves.

“This is maybe one of the only chemical issues I’ve worked on where there really seems to be high level of bipartisan interest in the issue, and I think that’s because this is really emerging as a very national problem,” said Melanie Benesh, a lawyer with the Environmental Working Group. “This is a problem that’s only going to grow.”

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