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Environment & Energy Report

Defense Bill Negotiations Loom on Climate, PFAS Provisions

Aug. 28, 2019, 8:01 AM

Congress will return the week after Labor Day needing to find a speedy compromise between House and Senate versions of an annual defense bill that take different approaches on climate change and potentially hazardous nonstick chemicals.

House and Senate negotiators are expected to formally begin ironing out differences between the fiscal 2020 defense authorization bills (H.R. 2500, S. 1790), shortly after Congress returns the week of Sept. 9, though informal “pre-conference conversations” are underway, a Senate Armed Services committee aide said.

The House and Senate have both passed their own bills that address exposures to chemicals known as PFAS, or per- and polyfluoroalkyl substances.

But the Democratic-controlled House version designates those chemicals as hazardous under the nation’s Superfund law, which would open the door to much more expansive regulation than the Senate bill.

Both bills also would direct the Pentagon to better prepare for climate change risks to defense installations. The House version again would go further in directing the department to do “climate-conscious” budgeting, essentially putting a price tag for replacing buildings, airfields, and other structures vulnerable to climate impacts.

The current defense authorization bill expires Sept. 30, although Congress has missed that deadline in past renewals.

The more pressing issue is ensuring that Defense Department funding continues uninterrupted past that date under a separate fiscal 2020 spending measure, which also is making its way through Congress.

Inhofe’s View

The House version would require the Pentagon to assume that sea levels will be rising in the future when assessing flood risk.

It also would require the Defense Department to develop a climate vulnerability and risk assessment tool to better measure risks to military networks, defense installations, and other assets.

Senate Armed Services Committee Chairman Jim Inhofe (R-Okla.)—one of the leading Capitol Hill skeptics about human contributions to global warming—told Bloomberg Environment he’ll push to keep the Senate provisions on PFAS and Pentagon climate vulnerability in the defense authorization bill.

In particular, he said, the House language directing the Pentagon to estimate replacement costs of buildings affected by sea level rise, flooding, wildfires, and other climate consequences “goes too far.”

PFAS Issues Unresolved

Other senators are urging that the Senate bill’s language on PFAS also be retained in negotiations.

At issue are PFAS compounds, some of which may cause adverse health effects, according to the Environmental Protection Agency, including developmental harm to fetuses, testicular and kidney cancer, liver tissue damage, immune system or thyroid effects, and changes in cholesterol.

Sen. Shelley Moore Capito (R-W.Va.) said the House language goes too far in attempting to regulate PFAS and that the House-Senate negotiators—known as conferees—should stick with the Senate language. That would still require the EPA to set a drinking water standard to limit exposure to the chemical.

Capito and Sen. Kirsten Gillibrand (D-N.Y.), in an Aug. 2 letter to Inhofe and the panel’s top Democrat, Sen. Jack Reed (D-R.I.), said those and other PFAS provisions in the Senate bill would still “help remediate and prevent further contamination of PFAS chemicals in the drinking water of communities across the nation.”

The House version goes further by including an amendment authored by Rep. Debbie Dingell (D-Mich.) to force the EPA to designate all PFAS substances “as hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Superfund law.

“I just don’t think that we’re fully baked on what putting all of the PFAS into CERCLA is going to do, and how broad that would be,” Capito said.

Capito said she would support “to some degree” narrower language directing the EPA to list a modest number of chemicals under the Superfund provision. PFAS chemicals aren’t listed as CERCLA hazardous substances.

The Senate provisions that Capito and Gillibrand want retained would require the EPA to include certain chemicals in the PFAS family, such as perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), in the agency’s Toxics Release Inventory.

They also would direct the EPA to decide within two years whether to add other PFAS chemicals to the inventory, which allows the public to access data on toxic releases and transfers at industrial facilities nationwide.

The Senate version also would direct EPA to set a national drinking water standard for certain PFAS chemicals and require manufacturers of the chemicals to submit additional data to the agency.

Veto Threat

Negotiations have been further complicated by a White House veto threat against the House version.

Despite the threat, one prominent House Democrat was optimistic. “We can get compromises on it,” Rep. Adam Smith (D-Wash.), chairman of the House Armed Services Committee, said. “I’ll certainly work with the White House to get to something that they can live with.”

Among the White House objections were PFAS provisions in the House bill, including one directing the Pentagon to stop using firefighting foam with PFAS chemicals and to develop a non-PFAS alternative.

Another would direct the department to provide farmers facing contamination clean water or treat the contaminated water sources.

The White House argued that the provision singles out the Pentagon for such contamination even though it is “only one contributor to this national issue.”

But in some cases, the Defense Department is directly responsible, said Patrick MacRoy, deputy director of the Environmental Health Strategy Center in Portland, Maine. He cited Art Schaap, owner of Highland Dairy in Clovis, N.M., whose cows drank water contaminated with PFAS from the nearby Cannon Air Force Base.

Schaap told Bloomberg Environment that installing a filter for water going into his dairy and his farm’s 15 contaminated wells would cost about $1.5 million, with annual maintenance of that filter running about $50,000 per well. Because Schaap can’t afford to install and care for the filter, he is dumping about 12,000 gallons of milk per day.

“That’s a real clear example of where the policy is just not aligned with the reality of agriculture,” MacRoy said.

Sen. Tom Carper (D-Del.), who backed adding PFAS language to the Senate version, said a compromise will likely land on keeping manageable the number of chemicals that will ultimately be regulated.

“It will be a lot more narrow than I think is in the House bill, and probably should be,” he said.

—With assistance from Pat Rizzuto and Tiffany Stecker.

To contact the reporter on this story: Dean Scott in Washington at dscott@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Chuck McCutcheon at cmccutcheon@bloombergenvironment.com; Rob Tricchinelli at rtricchinelli@bloombergenvironment.com