The PFAS Action Act of 2021
A small step forward while Congress figures who will pay the bill
By Pat Elder
August 4, 2021
Many of the nation’s municipal governments and drinking water and wastewater systems oppose the PFAS Action Act. They don’t want to be stuck with the tab.
On July 21, 2021, the U.S. House of Representatives passed the PFAS Action Act of 2021. The bill, H.R. 2467, passed 241-183, showing some bipartisan support. 23 Republicans joined Democrats in supporting the legislation. It’s a small step in the right direction but doesn’t go far enough in protecting human health or the environment from the ravages of these chemicals. The measure is now being considered by the US Senate.
The bill requires the Environmental Protection Agency (EPA) to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Superfund Act of 1980. This would require the cleanup of PFAS in the environment, including most military installations.
Within five years, the EPA must determine whether the remaining 8,000+ varieties of PFAS should also be designated as hazardous substances. The bill allows the heretofore dormant EPA significant discretion over future PFAS regulation.
Generally, Republicans in Congress are opposed to the measure because they see it as an expansion of federal powers while the EPA, they say, has already embarked on a path to regulate the chemicals. Some, like Rep. John Joyce (R-Penn.) have mastered the art of deception. He argues that using a hazardous designation for the chemicals “has the potential to slow down the cleanup process of PFAS.”
Many in the Senate oppose provisions in H.R. 2467 because it would mandate a national primary drinking water regulation for PFOA and PFOS. They contend this would undermine the development of transparent, science-based drinking water standards, and would place undue cost burdens on communities and ratepayers while leading to premature regulatory decisions that lack public review and scientific validity.
The following entities have lined up in opposition to the measure because they say the measure would assign environmental cleanup liability to innocent water systems and their customers:
American Council of Engineering Companies
Association of California Water Agencies
California Association of Sanitation Agencies
National Association of Counties
National League of Cities
National Water Resources Association
Water Environment Federation
American Water Works Association
Association of Metropolitan Water Agencies
National Association of Clean Water Agencies
National Association of Water Companies
National Rural Water Association
The U.S. Conference of Mayors
The Military
There are more than 700 military bases with PFAS contamination, but the Department of Defense has not begun to clean them up, although they talk a good game, convincing communities worldwide that things are under control and they’re following a process to eradicate the chemicals from the environment and safely dispose of them - if that is even possible.
The Pentagon has always claimed it does not have to follow state laws regarding limits of PFAS in drinking water, groundwater, and surface water. The DOD has gone so far as to claim “sovereign immunity” in US District Court cases brought by states seeking claims for PFAS contamination. With the Superfund designation, however, the Department of Defense would be required to start cleaning up the poisoned environment.
The DOD, according to a congressional source, has concerns of potential liability for PFAS contamination at joint-use airports. A joint-use airport is an airport owned by the Department of Defense, at which both military and civilian aircraft share use of the airfield. House lawmakers gave a pass to the military and civilian owners of these joint-use airports. It’s clever how the language reads without mentioning the DOD:
“No sponsor, including a sponsor of the civilian portion of a joint-use airport or a shared-use airport shall be liable under the Superfund Act for the costs of responding to, or damages resulting from, a release to the environment of PFAS designated as a hazardous substance.”
This promises to be one section in the bill that isn’t stricken by the Republicans in the Senate. These airports are suddenly off the hook after willfully poisoning communities for two generations. Imagine the cleanup costs avoided at Dover Air Force Base in President Biden’s home state of Delaware. The Air Force reported a combined total of 2.8 million parts per trillion of PFOS and PFOA in the groundwater at Dover. The state of Delaware has issued a lifetime health advisory for ground water at 70 ppt. Dover AFB exceeds that 40,000-times over.
In this 2013 photo, a fire crew at Dover Air Force Base in Delaware responded to a massive inadvertent foam release from a hangar fire suppression system. A teaspoon of the foam could poison a city’s drinking water reservoir. Nothing in the PFAS Action Act precludes this scene from reoccurring all over the world. [Source: stardem.com]
The Federal Aviation Administration has identified the following 21 military installations as Joint-Use Military Airfields:
Air Force
AF Plant 42, Palmdale, CA
Charleston AFB, Charleston, SC
Dover AFB, Dover, DE
Eglin AFB, Valparaiso, FL
Grissom AFB, Peru, IN
Kelly/Lackland AFB, San Antonio, TX
March ARB, Riverside, CA
Scott AFB (Mid America), Belleville, IL
Sheppard AFB, Wichita Falls, TX
Westover ARB, Chicopee, MA
Army
Blackstone AAF (Ft. Pickett), VA
Camp Guernsey AAF, Guernsey, WY
Dillingham AAF, Waialua, HI
Forney AAF (Fort Leonard Wood), MO
Robert Gray AAF, Ft. Hood/Killeen, TX
Grayling AAF, (Camp Grayling), MI
Libby AAF (Ft. Huachuca), Sierra Vista, AZ
Sherman AAF, (Ft. Leavenworth), KS
Sparta/Fort McCoy (Sparta), WI
Wright AAF (Fort Stewart) Midcoast Rgnl, Ft Stewart/Hinesville, GA
Navy
MCAS Yuma, Yuma, AZ
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The legislation will require the EPA to submit a report containing a review of actions to clean up contamination of PFAS, including:
· The number of sites;
· Which types of chemicals relating to such substances were present at each site and the extent to which each site was contaminated.
· An analysis of discrepancies in cleanup between Federal and non-Federal contamination sites.
The EPA must require that comprehensive toxicity testing be conducted on all PFAS and it must establish a national primary drinking water regulation for PFAS, which shall include standards for PFAS that the EPA has decided to regulate. This is necessary, although it leaves most PFAS pathways to human consumption unimpeded. Perhaps the most compelling inconvenient truth is that most of the PFAS in our bodies is consumed through the food we eat, particularly seafood taken from contaminated waters.
Regarding the food, the US Food and Drug Administration (FDA) has already taken a stance on PFAS in fish - and all food - by giving America’s food a clean bill of health. PFAS levels in fish aren’t going to hurt you, they say. Catching and consuming fish with a million parts per trillion of PFOS caught in waters near military installations is not regulated by the federal government and nothing in this act will change that.
The legislation, now being carved up by the U.S. Senate, precludes the EPA from imposing financial penalties for the violation of a national primary drinking water regulation with respect to PFAS within five years of establishing a national primary drinking water regulation.
Why wait five years after the EPA sets maximum contaminant levels for several varieties of PFAS? The hope among Republicans is that they’ll regain control by then and no one, except the taxpayer, will lose money.
The legislation authorizes $500 million for each of fiscal years 2022 through 2026 to award grants to affected community water systems to pay for capital costs associated with the implementation of eligible treatment technologies. It’s good, but not nearly enough. For instance, the Orange County (CA) Water District figures it’ll cost more than $1 billion to abide by California’s new drinking water regulations that set “Response Levels” of 10 ppt for PFOA and 40 ppt for PFOS. Exceeding the response level requires a water service provider to shut down the affected well or to blend the waters with a less-contaminated source.
Orange County cites the installation of costly filter systems, related construction, and operation and maintenance of water treatment plants, along with the increased cost of imported water in the interim. And they still don’t know what to do with the PFAS-laden water filters.
Many local, state, and federal agencies have either been in a state of shock or denial regarding the price tag to remediate PFAS contamination and protect public health from all of the contamination pathways.
The PFAS Action Act requires the EPA to add PFOA and PFOS to the list of hazardous air pollutants under the Clean Air Act, and within 5 years the EPA shall add other types of PFAS to the list of hazardous air pollutants. This is a good development, although it seems to be undermined in the next section which allows incineration in the interim. The bill says, “The EPA shall promulgate regulations requiring that when materials containing PFAS or aqueous film forming foam are disposed, all incineration is conducted in a manner that eliminates PFAS while also minimizing PFAS emitted into the air to the extent feasible.”
The Pentagon ordered the clandestine burning of over 20 million pounds of AFFF and AFFF waste between 2016-2020. That’s despite the fact that there is no evidence that incineration actually destroys these synthetic chemicals. The rain in Cleveland recently contained a thousand parts per trillion of PFAS, while a mother’s breastmilk in the United States often exceeds concentrations of PFAS allowed in drinking water in some states.
This is insane. We ought to ban the practice of incinerating PFAS.
The bill does not ban PFAS in products like pots, pans, various cooking utensils, carpets, rugs, clothing, and upholstered furniture, stain resistant, water resistant, or grease resistant coatings, food packaging material, umbrellas, luggage; or cleaning products.
Instead, the bill calls on the reluctant EPA to establish a voluntary label that is available to be used for products that have been found by the EPA not to contain PFAS. PFAS must be removed from these consumer items. They eventually wind up in the landfill and they create highly toxic leachate runoff loaded with PFAS.
Two years ago, three mattresses, two box springs, two couches, and one chair were pulled out of the waste stream at the Coventry Landfill in Vermont and tested for PFAS. The state found the items contained 1.2 million parts per trillion (ppt) of the toxins. These resilient chemicals travel from the landfill to our lakes, rivers, and farm fields where they find a pathway to human ingestion.
Simply put, there are two parts to the PFAS equation: cleaning up the mess and stopping further messes. This legislation largely fails in both realms.
The act directs the EPA to issue guidance on minimizing the use of, or contact with, firefighting foam and other related equipment containing PFAS by firefighters, police officers, paramedics, emergency medical technicians, and other first responders. This should be accomplished, the lawmakers write, “without jeopardizing firefighting efforts.” The bill fails to mandate the use of fluorine-free foams, a move that is not likely to jeopardize firefighting efforts. Much of the world has switched to using the environmentally compatible foams but Congress will have none of it.
The PFAS Action Act calls on the EPA to investigate ways to prevent contamination by GenX of surface waters. GenX is a Chemours trademark name for a technology that is used to make nonstick coatings without the use of PFOA.
This is the only mention of surface water in the bill, and yet, surface waters and the seafood contained within them, generally provide the number one pathway to human ingestion for PFAS. The nation’s rivers and lakes are contaminated with a host of different varieties of PFAS. In the Chesapeake region, surface water was found to contain 14 different types of PFAS, but not GenX. Some of these chemicals may wildly bioaccumulate in fish. The legislation stays away from all of this.
Another section of the bill amounts to a backhanded slap to well owners near military and industrial sites who have poisoned wells. The act allocates a whopping $1 million for the EPA to establish a website containing information relating to the testing of household well water. The website will provide information on how to properly test well water and obtain information on financial assistance that may be available. People with wells are especially vulnerable. It would be more prudent to establish a fund for state health departments that would test private wells, especially those within a certain distance from known industrial or military release sites.
It is good to see that the EPA may be directed to establish effluent limitations, guidelines and standards, in accordance with the Federal Water Pollution Control Act, for the discharges into publicly owned treatment works of each measurable PFAS. The legislation lists the following industries that will face PFAS regulation for the first time: organic chemicals, plastics, synthetic fibers, pulp, paper, paperboard, Textile mills, electroplating, metal finishing, leather tanning and finishing,pPaint formulating, electrical and electronic components, and plastics molding and forming. This is a lot to read in one sentence, but this section of the bill could eventually go a long way in shielding us and our progeny from much of the harm caused by these chemicals.
Of course, we’ll have to see what’s allowed regarding PFAS levels in effluent. Will wastewater treatment facilities like San Diego’s North City Water Reclamation Plant be allowed to continue distributing reclaimed water containing nearly 1,000 ppt of PFAS to customers for irrigation, landscaping and industrial use?
PFAS varieties, like PFOS that bioaccumulates in fish and wildlife, ought to be immediately eliminated from waste streams. For instance, the European Union considers PFOS as a priority hazardous substance under the EU Water Framework Directive. The European Environmental Quality Standard limit value is .65 ppt for inland surface waters. The Wisconsin Department of the Environment says more than 2 ppt of PFOS in surface water is a threat to human health. America’s creeks and rivers and fish are severely contaminated with PFAS.
The PFAS Action Act of 2021 is a necessary first step, and it accomplishes quite a bit, but there’s a long way to go before Congress can settle on who is going to foot the bill and the public is finally protected from these chemicals.