House adopts expansive bill to regulate, cleanup PFAS contamination

Melissa Nann Burke
The Detroit News

Washington — The U.S. House passed bipartisan legislation Wednesday led by Michigan lawmakers that would designate certain toxic fluorinated chemicals as hazardous under federal environmental authorities including the Superfund cleanup statute. 

The House voted 241-182 to adopt the PFAS Action Act, sponsored by U.S. Reps. Debbie Dingell, D-Dearborn, and Fred Upton, R-St. Joseph, which also requires federal regulators to establish an enforceable, national standard for per- and polyfluoroalkyl (PFAS) chemicals — at minimum covering two well-known PFAS compounds, PFOS and PFOA — within two years. 

The U.S. Environmental Protection Agency currently has a health advisory level of 70 parts per trillion for PFOA and PFOS exposure through drinking water, though Michigan state law has a stricter threshold.

"EPA has understood the risks posed by PFAS since 1998. The Defense Department has understood the risks posed by PFAS since the 1970s. The FDA has understood the risk posed by PFAS since the 1960s," Dingell said. "But we still do not have in 2021 strong federal policies to combat these forever chemicals."

It's the second time the House has passed a version of the bill, which Dingell said sponsors are continuing to work with senators on. One change this Congress is the legislation has the support of President Joe Biden, in contrast to the Trump administration, which opposed it and had threatened a veto. 

"We are going to get this done," Dingell said. 

Foam along the Huron River can be seen downstream from the Barton Dam in the Barton Nature Area in Ann Arbor.

Rep. Cathy McMorris Rogers, the top Republican on the House Energy and Commerce Committee, said this version of the bill is "not the right approach," though she said she's among the lawmakers with PFAS in her district that she'd like to see cleaned up.

"I'm struggling with why this aggressive expansion of federal power and spending is the best answer that the People's House can provide?" she said on the floor.

She argued the bill places a "de facto ban" on all PFAS chemicals and threatens the viability of industries that rely on them, saying they're crucial in the production of semiconductors, lithium-ion batteries, solar panels, certain medical devices and as well as protective gear for law enforcement and the military. 

"Make no mistake, Mr. Speaker. This bill essentially bans the materials that are necessary for America to win the future," Rogers said.

Supporters disputed her claims, saying the legislation would not preclude the use of the entire class of chemicals. 

Upton allowed that the bill is "not perfect," saying on the House floor that the legislation needs a number of "constructive changes" before reaching Biden's desk. 

"We know this stuff is bad. We know this causes cancer," Upton said. 

He recounted a story from his southwest Michigan district where, three years ago, the water system in Parchment tested at 1,587 ppt for PFAS chemicals, far exceeding the 70 ppt threshold. Residents were unable to drink or cook with their water until their lines were hooked into the Kalamazoo water supply.

PFAS, also known as "forever chemicals" for their persistence in the environment, have long been used to make furniture, paper packaging for food and cookware resistant to water, grease or stains. 

Starting in the '70s, the Department of Defense used firefighting foam containing PFOS and sometimes PFOA for emergency response and training, leading to the contamination of groundwater around military installations. 

The chemicals are linked to health effects including certain cancers and damage to liver and immunity functions, developmental impacts on fetuses, as well as cognitive and behavioral effects in exposed children. 

Bill sponsors said that formally listing PFOS and PFOA as hazardous under Superfund authority would give regulators power to require responsible parties to undertake or pay for cleanup for contaminated sites, including the Department of Defense. 

The legislation also includes provisions restricting industrial discharges of the chemicals into lakes, rivers and streams; requires PFAS health testing; and offers a voluntary label for PFAS-free products, according to a bill summary. The text also authorizes funding for five years to provide grants of up to $100,000 to utilities for water treatment, according to a bill summary.

Opponents of the legislation, including the American Chemistry Council, have denounced the bill as a "one-size-fits-all regulatory approach" to a large class of chemicals, regardless of their different characteristics and applications.

The council warned that the measures is premature, overly broad and, in some cases, duplicative of the ongoing "science-based" regulatory process. For instance, a hazardous air pollutant designation for PFOA and PFOS is unnecessary because their manufacturing has been voluntarily phased out in the U.S., the group said.

"Over half the provisions in this bill are already underway at the EPA," said U.S. Rep. Tim Walberg, R-Tipton. "The bill before us today, though well-intentioned, goes too far. HR 2467 is so expansive, the Congressional Budget Office was unable to assign it a budget score."

Rep. Dan Kildee, a Flint Township Democrat and co-chair of the PFAS Task Force, said previous administrations have moved to slowly on the issue, which is one reason "we need to act."

"We're supportive of the EPA moving forward to protect people from PFOA and PFOS in drinking water," Kildee said. "The PFAS Action Act would set a more aggressive timeline to protect public health." 

Kildee said, for example, he was disappointed that the EPA has not moved to list PFOA and PFOS as hazardous under the authority it has under the Superfund statute, and that the Defense Department has been "dragging their feet" on tackling their cleanup responsibilities in communities across the country, including in Michigan.

Rep. Andy Levin, D-Bloomfield Township, said the bill incorporated his legislation that prohibits unsafe incineration of PFAS and an amendment that authorizes $100 million to carry out a new grant program at EPA to test for and remediate PFAS in drinking water at schools. 

"It's a critical step in protecting our students against PFAS exposure, which has proven to be really dangerous to our kids," he said. 

Groups representing municipalities and drinking water and wastewater systems objected to the legislation over concerns that it would potentially subject their ratepayers to "staggering" financial liability to clean up PFAS that was disposed of at a hazardous waste landfill after the water treatment process.

They said utilities would be responsible for covering cleanup costs in the case that the landfill becomes a Superfund site and want lawmakers to provide a liability exemption to protect them and their customers from having to cover cleanup costs.

Lawmakers countered that entities that didn't cause the pollution shouldn't worry about Superfund liability.