Senate Committee Holds Hearing on “Evaluating the Federal Response to the Persistence and Impacts of PFAS Chemicals on our Environment”

On October 20, 2021, the Senate Committee on Atmosphere and Public Works held a listening to on “Evaluating the Federal Response to the Persistence and Impacts of PFAS Chemicals on our Environment.” The only witness referred to as earlier than the Committee was the U.S. Environmental Safety Company (EPA) Assistant Administrator for the Workplace of Water, Radhika Fox. The main target of the listening to was to deal with the lately launched EPA Strategic Roadmap for per- and polyfluoroalkyl substances (PFAS). Extra data on EPA’s Strategic Roadmap is accessible in our October 19, 2021, memorandum.

Greater than half of the Committee members have been current for the listening to, every relaying an expertise that both they or members of their communities have had with PFAS. The road of questions posed by the Committee members targeted on 5 predominant considerations: legal responsibility for airport amenities which have used and proceed to use PFAS in firefighting operations; the want to set a federal Secure Ingesting Water Act (SDWA) normal for PFAS; how EPA will work with states and tribes in addressing PFAS transferring ahead; the repeal of the Clear Water Act (CWA) Navigable Waters Safety Rule and its alternative with the pre-2015 Waters of the United States (WOTUS) rule; and the want to move each the Infrastructure Invoice and the Construct Again Higher Invoice to help EPA with funding to deal with PFAS. The Poisonous Substances Management Act (TSCA) was solely talked about as soon as throughout the listening to. Senator Shelley Moore Capito (R-WV) offered her opening remarks and mentioned actions underway to deal with PFAS, together with utilizing TSCA Part 8 reporting necessities as a method of informing EPA. Extra data on EPA’s proposed reporting rule is accessible in our June 11, 2021, memorandum.

Senator Jim Inhofe (R-OK) expressed concern over potential enforcement actions taken by EPA towards aviation amenities and operators for the prior use and continued use of PFAS firefighting foams. Senator Tammy Duckworth (D-IL) additionally addressed the use of PFAS firefighting foams and how the continued use could also be obligatory, however has created severe water high quality points for Illinois. Senator Duckworth probed Assistant Administrator Fox on how EPA would work to rectify the want balanced towards the hurt. Fox responded that there have to be sturdy interagency cooperation transferring ahead to deal with PFAS regulation and remediation. Fox said that if aviation personnel are working below the steering of the Federal Aviation Administration (FAA) and the Division of Protection (DOD) in the use of these firefighting foams, EPA is not going to take enforcement motion. Fox reiterated {that a} key side of the PFAS roadmap is working to discover substances that may take the place of PFAS at present in use, equivalent to these firefighting foams. Senator Inhofe pushed additional, asking Fox if there can be an exemption in place for the aviation business if a PFAS catastrophe have been to happen in the interim. Fox was noncommittal in her response, however famous that the proposed rulemaking for designating sure PFAS chemical compounds as hazardous substances below the Complete Environmental Response, Compensation, and Legal responsibility Act (CERCLA) is projected to be printed for public remark in the spring of 2022.

Senator Capito repeated concern over PFAS publicity by means of consuming water. She famous that whereas there are already state PFAS protected consuming water requirements, the timeframe to set up a brand new nationwide normal that’s reflective of identified dangers might be lengthy below the PFAS roadmap. Senator Capito additionally famous that the roadmap is in depth and has a broad agenda, and she urged Fox to push the nationwide protected consuming water normal to the high of the agenda. The timeline for PFAS consuming water publicity was additionally a priority for Senator Benjamin Cardin (D-MD). Senator Cardin relayed points with some of Maryland’s water remedy crops that work to take away PFAS. He said that there have been instances in the previous when these crops have been taken offline as a result of of PFAS overload. Fox agreed with these sentiments and mentioned a timeframe for addressing water high quality. She referred the Committee again to the October 18, 2021, EPA announcement of a national PFAS testing strategy and said that the first take a look at orders might be issued in a couple of weeks. Fox additionally mentioned the formation of a scientific advisory board, a GenX chemical compounds toxicity evaluation and subsequent well being advisory, in addition to EPA’s purpose of having a proposed rule open for public remark by this time subsequent yr. Total, Fox was assured that EPA is transferring quickly to deal with the considerations.

When requested by Senator Capito whether or not water remedy crops would face legal responsibility when left with the duty of disposing of the eliminated PFAS, Fox offered a two-part response. Fox famous that if PFAS chemical compounds are designated as hazardous substances below CERCLA, the procedures which are already in place for disposal of hazardous substances by water remedy crops would apply. In phrases of biosolids, Fox said that EPA is engaged in additional research and intends to publish danger assessments for these biosolids inside the subsequent few years.

Senator Cardin then shifted the dialog towards remediation in the seafood business and considerations over protected meals inventory. He inquired how the EPA roadmap will work with states in addressing remediation and fish advisory notices. As half of the roadmap, Fox testified that EPA might be partnering with the Environmental Council of the States (ECOS) to work on the subject with states and tribes. Fox famous that EPA Administrator Michael Regan has a state regulatory background and has made it half of his agenda to companion with and foster dialogue between EPA and state and tribal governments. The EPA roadmap will work to create ambient water high quality standards to set up PFAS water high quality requirements below the CWA.

Senators Cynthia Lummis (R-WY) and Debbie Stabenow (D-MI) every questioned Fox on how EPA supposed to deal with a nationwide protected consuming water normal whereas balancing state wants and federal company wants. Senator Stabenow described how Michigan has a state consuming water normal, however at army bases, DOD doesn’t at all times adhere to state requirements. Senator Lummis famous prior delays in communication and transparency by EPA when working with states. Fox agreed with the Senators about the significance of federalism and said that it’s the intent of EPA to set up a flooring for PFAS consuming water requirements. The federal flooring would permit for every state to decide if there’s a want to impose a stricter consuming water normal for his or her respective communities. Fox additionally famous that the White Home Council on Environmental High quality has launched an interagency council of Deputy Secretaries to help in implementing the nationwide consuming water normal.

Senator Kevin Cramer’s (R-ND) considerations with the roadmap stemmed from EPA guidelines which may be overly burdensome for extra rural states, equivalent to his. Senator Cramer was additionally involved about what Fox noticed as the “more durable” WOTUS rule in response to two federal district courts in New Mexico and Arizona vacating the Navigable Waters Safety Rule. In response, Fox knowledgeable the Committee that each EPA and the Military Corps of Engineers have directed regional workplaces to function below the 1986 WOTUS rule whereas a two-step rulemaking happens to solidify the pre-2015 WOTUS rule. The purpose is to forestall states and business from CWA uncertainty. Senators Lummis and Joni Ernst (R-IA) every pushed again towards the shift in defining which U.S. waters are topic to the CWA and requested arduous information on environmental harms brought on by the now-vacated Navigable Waters Safety Rule. Senator Ernst’s concern associated to the ranchers and agricultural group of her house state of Iowa. Fox repeated her earlier response, noting that the repeal was at the palms of the district courts and that each EPA and the Military Corps of Engineers have returned to the prior WOTUS rule in response to the judiciary. Fox did state that EPA has no intention of eradicating exemptions for prior dedicated farmlands. When pressed about how the WOTUS rule would have an effect on different agricultural considerations expressed by Senator Ernst, Fox said that she was unable to predict how future rulemaking would impression agricultural rules.

Senators Mark Kelly (D-AZ), Duckworth, and Tom Carper (D-DE) every took the alternative introduced by the listening to to illustrate that each the Infrastructure Invoice and the Construct Again Higher Invoice allocate funds for EPA, and particularly $10 billion in PFAS funding. In his closing remarks, Senator Carper requested Fox what Congress can do to assist EPA in its initiative to deal with PFAS, noting the stage of concern expressed throughout the listening to. Fox famous that PFAS is of nice concern to the well being of the American individuals and the atmosphere and that EPA has misplaced greater than 1,000 profession employees throughout the prior Administration. Fox agreed that funding to rebuild water infrastructure and rebuild employees was crucial to addressing PFAS.

Commentary

Outdoors of a couple of vocal Senators’ disapproval of EPA’s adoption of the prior WOTUS rule in implementing the CWA, there was a basic sense of approval of the actions EPA has introduced will probably be taking to deal with PFAS. The most important subject that Senators had was the quantity of time that EPA plans to take to obtain its motion plan and roadmap. Most Senators expressed a urgent want to deal with PFAS of their states’ groundwater, lakes, fishing industries, and water remedy methods. Assistant Administrator Fox resonated with their considerations, however famous that rulemaking requires sure procedural steps, together with conducting additional research and information assortment for the report and holding a public remark interval for every proposed rulemaking effort. Fox pressured that EPA intends to use each statutory authority given to the Company to deal with PFAS analysis, restriction, and remediation. The PFAS roadmap is designed to have an built-in method in order that not only one chemical or one publicity pathway is addressed at a time. When talking with Senator Carper throughout closing remarks, Fox famous that what Congress can do to help EPA on this activity is to move the Infrastructure Invoice and think about granting EPA extra statutory authority. Senators can have till November 3, 2021, to file extra questions for the report. Assistant Administrator Fox’s responses have to be filed by November 17, 2021. These additions to the report could show price studying, as virtually half of the Committee was not current, and those who did take part in the listening to requested in-depth questions and confirmed a excessive stage of engagement about EPA’s PFAS plan.

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