Impact Of Congressional Ruling On PFAS

By Peter Rundell and Larry Gwinn, Microbac Laboratories

The ability of per- and polyfluoroalkyl substances (PFAS) to contaminate everything in their wake and resist degradation in nature has propelled these “forever chemicals” into a serious public health concern over the past two decades, galvanizing calls for sweeping federal legislation.

By a vote of 241 to 183, the U.S. House of Representatives passed the PFAS Action Plan of 2021 (H.R. 2467) in late July. In many quarters, the bipartisan and landmark legislation has received widespread praise as a pivotal and long overdue first step in addressing the ongoing PFAS crisis in the U.S.

Public Outcries

In recent years, the growing prevalence of PFAS in drinking water and their possible effects on human health have prompted mounting outcries for comprehensive federal regulations by legions of environmental organizers across the country.

The Environmental Working Group, an environmental advocacy consortium based in Washington, D.C., estimates that more than 1,500 drinking water systems that serve nearly 110 million Americans may be contaminated with these toxic chemicals. Moreover, a number of researchers and environmental watchdog groups contend that various PFAS are likely detectable in virtually all of the country’s major water supplies, particularly those that draw drinking water from surface sources, such as rivers and lakes.

The Centers for Disease Control and Prevention (CDC) cites a host of health effects associated with PFAS exposure, including cancer, liver damage, decreased fertility, and increased risk of asthma and thyroid disease. At the same time, the Agency for Toxic Substances and Disease Registry (ATSDR), a division of the Department of Health and Human Services (HHS), states that unborn babies, infants, and young children are susceptible to PFAS exposure.

Devil In The Details

If signed into law, the PFAS Action Plan of 2021 would protect the nation’s air, land, and water from harmful PFAS contamination by:

• Requiring the EPA to establish a national drinking water standard for two of the most prominent PFAS — perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) — within two years that protects public health, including the health of vulnerable sub-populations;
• Requiring the U.S. EPA to place discharge limits on industrial releases of PFAS and provide $200 million annually for wastewater treatment;
• Designating PFOA and PFOS chemicals as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) within one year and require the EPA to determine whether to list other PFAS within five (5) years;
• Designating PFOA and PFOS as hazardous air pollutants within 180 days and require the EPA to determine whether to list other PFAS within five (5) years;
• Prohibiting unsafe incineration of PFAS wastes and place a moratorium on the introduction of new PFAS into commerce;
• Requiring comprehensive PFAS health testing; and
• Creating a voluntary label for PFAS in cookware and other products.

Cloudy Future

The Democratic House bill, which won the support of 23 Republican lawmakers, has received the support of the Biden White House. But the legislation faces a much thornier road in the U.S. Senate where 60 votes are needed for the bill’s passage.

Thus far, many Republican senators have largely replicated the opposition talking points of their U.S. House counterparts stating that the bill is “overwhelming, heavy handed and unscientific,” as well as an “aggressive expansion of federal power.” Others note that the bill, while well-intended, should not be given full consideration on the Senate floor due to the inability of the Congressional Budget Office to assign a budgetary score to the ambitious and far-reaching legislation. 

The future of the bill is clouded even further by the opposition of influential organizations representing the U.S. water sector. In an open letter to legislators, the American Water Works Association (AWWA), the Water Environment Federation (WEF), the Association of Metropolitan Water Agencies (AMWA), the National Association of Clean Water Agencies (NACWA), the National Association of Water Companies (NAWC), the National Rural Water Association, the U.S. Conference of Mayors and six other organizations detailed their opposition stating in part:

“While we support taking action to reduce the prevalence of PFAS in the environment, the legislation would run counter to the important “polluter pays” principle that guides Superfund site cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and would step back from the transparent, science-based process of regulating drinking water contaminants under the Safe Drinking Water Act (SDWA) and clean water operations under the Clean Water Act (CWA). We urge you to vote against this legislation in its current form.

“H.R. 2467 would require EPA to designate PFOA and PFOS as hazardous substances under CERCLA within one year, and to make a determination on designating all remaining PFAS within five years. These hazardous substance designations are intended to make sure polluters are held responsible for paying for the cleanup of contaminated Superfund sites, which we support. But the bill as currently structured would also mean that municipal drinking water and wastewater utility ratepayers could face staggering financial liability to clean up PFAS that was legally disposed of following the water treatment process. We believe water and wastewater utilities, when acting in accordance with all applicable laws, should be provided an exemption to protect the utilities and water customers from bearing the costs of cleanup.”

Let’s Make A Deal

Needless to say, the PFAS Action Plan of 2021 faces a perilous and complicated road to becoming law. Moving forward, it is imperative for legislators and industry stakeholders to heed calls for compromise and collaboration to ensure that this important piece of legislation is not relegated to the legislative dust bin.

Mr. Rundell is an environmental scientist and a problem solver. As Microbac’s Business Development Manager, he hears from companies and organizations firsthand on the testing issues they face and works to create custom solutions that keep the public safe. His wealth of knowledge comes from his decades long experience specializing in environmental, drinking water, wastewater, and food laboratory testing.

Larry Gwinn has been working in the environmental laboratory field for 37 years. Mr. Gwinn holds a BS in Chemistry from Marshall University in Huntington, WV. He currently serves as Senior Scientist at Microbac Laboratories in Marietta, Ohio. He is a senior member of the PFAS committee at Microbac. The committee is charged with being on the leading edge of new regulations, technology, and methodology for PFAS. His work with PFAS methods has yielded more efficient analyses with increases in the throughput of samples.