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Republicans Slam Regulating PFAS Under Superfund Law (1)

Sept. 26, 2019, 6:44 PMUpdated: Sept. 26, 2019, 7:27 PM

Rep. Fred Upton’s biggest challenge to moving a sweeping bill to regulate fluorinated chemicals could be his own party.

The Michigan Republican is a vocal supporter of addressing one of the most widespread and poorly understood class of chemicals in the country.

Upton is an original co-sponsor, along with Rep. Debbie Dingell (D-Mich.), of a bill that would designate every chemical in a class of thousands of per- and polyfluoroalkyl substances (PFAS) as a hazardous substance under the nation’s Superfund law within one year of enactment.

If the bill, the PFAS Action Act of 2019 (H.R. 535), were signed into law, it would trigger mandatory cleanups and, in some cases, force manufacturers to foot the bill.

It cleared an early hurdle on Sept. 26 when the House Energy and Commerce subcommittee on environment and climate change advanced the bill to a full committee vote. The full panel is expected to take up the legislation in the coming months.

“The PFAS issue is personal to Fred,” his spokesman, Josh Paciorek, said in an email, citing contamination in the city of Parchment, Mich., in Upton’s district. “Fred remains committed to working with all his colleagues to address this challenge across the nation.”

‘Step All Over Science’

Upton wasn’t present at the markup as Republicans raised concerns that the legislation would cover a broad class of chemicals, not all of which have been identified and whose health effects haven’t been adequately studied.

“This legislation would step all over science and make a political determination, and I don’t think that’s the right approach here,” the committee’s ranking member, Rep. Greg Walden (R-Ore.), said.

Rep. John Shimkus (R-Ill.), the subcommittee’s ranking member, opposed a “de facto ban” on chemicals that are used in medical devices, the aerospace industry, and other necessary products.

And Rep. Buddy Carter (R-Ga.) said the law could lead civilian airports, which rely on PFAS-containing firefighting foam, to violate existing laws in order to comply with the Comprehensive Environmental Response, Compensation, and Liability Act, or Superfund law.

Wheeler Not In Favor of Superfund Regulation

PFAS are a group of thousands of chemicals, many of which are used in household and industrial products because of their unique ability to resist high temperatures, water, and stains.

Some PFAS don’t break down in the environment, raising the chance that humans and wildlife would be exposed to them. Research on several formulations show they can increase cancer risk, harm thyroid function, affect growth and learning in children, raise cholesterol levels, and disrupt hormones in the body, according to the Agency for Toxic Substances and Disease Registry.

The Trump administration is unlikely to support regulation of PFAS under the Superfund law. EPA Administrator Andrew Wheeler said at a Sept. 26 policy forum that hazardous substances being regulated under CERCLA would create more problems than it solves.

But some companies are willing to accept regulating some of the substances under CERCLA. A representative for Dupont de Nemours Inc., one of the companies that manufactured early versions of PFAS, said at a Sept. 10 oversight hearing that he would support such a designation for the two most-studied chemicals in the class, PFOA and PFOS—though not for all of them.

‘We’ve Got a Crisis’

Committee Chairman Rep. Frank Pallone (D-N.J.) said the regulation of all PFAS would be “no different than the other chemical groups already listed” under the law. And Dingell stressed the magnitude and seriousness of a problem that drinking water authorities are grappling with nationwide.

“We can’t keep waiting to do something,” Dingell said. “We can all work together to do it right, but we’ve got a crisis.”

Three other Republicans — Reps. Richard Hudson and David Rouzer, both of North Carolina, and Rep. Brian Fitzpatrick of Pennsylvania—also support the bill. They came on as co-sponsors several months after Upton. The three aren’t members of the subcommittee voting on the bills.

The bill was one of 13 PFAS-related measures that the subcommittee approved by voice vote despite Republican opposition.

Bill Changes Before Full Panel Markup

Subcommittee Chairman Rep. Paul Tonko (D-N.Y.) told Bloomberg Environment that committee members would fine tune some of the bills, such as one to prohibit the disposal of firefighting foam containing the substances by incineration, and another on labeling products with PFAS, before the full committee takes them up.

Tonko added he’s optimistic that the two parties can work out an agreement on the slate of PFAS legislation.

“There’s a lot of public pressure to get things done,” he said.

The markup comes as House and Senate conferees on the National Defense Authorization Act debate provisions in the military spending bill to limit PFAS pollution stemming from military installations’ use of PFAS-containing foam to extinguish jet fuel fires.

The panel approved the following measures:

  • H.R. 2377 to require that the EPA administrator publish a maximum contaminant level goal and issue a national primary drinking water regulation for total PFAS.
  • H.R. 2533 to create a grants program for PFAS-affected water systems to help pay for new treatment technologies.
  • H.R. 2566 to require that the EPA include pots, pans, and cooking utensils that don’t contain PFAS in its Safer Choice labeling program.
  • H.R. 2570 to require polluters to pay ongoing water treatment costs associated with PFAS contamination.
  • H.R. 2577 to add PFAS to the Toxics Release Inventory.
  • H.R. 2591 to prohibit waste incineration of firefighting foam with PFAS.
  • H.R. 2596 to stop the EPA from approving companies’ manufacturing and processing notices for new PFAS chemicals.
  • H.R. 2600 to prohibit the manufacture of any new PFAS chemical substance, and prohibit the manufacture or process of any PFAS chemical substance as a significant new use under the Toxic Substances Control Act.
  • H.R. 2605 to classify PFAS as hazardous air pollutants under the Clean Air Act.
  • H.R. 2608 to require comprehensive health testing of all PFAS under the Toxic Substances Control Act.
  • H.R. 2626 to require cleanups at federal facilities to meet state limits for PFAS.
  • H.R. 2638 to issue guidance for firefighters and other first responders to minimize the use of foam and other firefighting materials containing PFAS, and to minimize their health risk from PFAS exposure.

Asbestos Ban

The subcommittee also approved H.R. 1603, a bill from Rep. Suzanne Bonamici (D-Ore.) that would prohibit the production, use, and importation of asbestos, and a complete ban on asbestos one year after the bill’s passage. It was approved by voice vote despite a handful of “noes” from the Republican side of the room.

Asbestos, which has been linked to lung cancer, was once commonly used in insulation, floor tiles, and auto parts. The inability of the U.S. to phase asbestos out of existence became the prime example of the weakness of U.S. chemical laws to protect public safety.

“Today we are saying enough is enough,” Pallone said.

Walden said he supported the intent of the legislation, but had concerns about the implementation.

—With assistance from Sylvia Carignan and Pat Rizzuto.

(Updated 14th paragraph to note that the Dupont representative would support regulating PFOA and PFOS under the Superfund law. )

To contact the reporter on this story: Tiffany Stecker in Washington at tstecker@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com

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