House passes PFAS Action Act, but there’s one problem

Last week, the House of Representatives approved legislation that would require the U.S. Environmental Protection Agency (EPA) to establish national drinking water standards for regulating harmful forever chemicals, known as per- and polyfluoroalkyl substances (PFAS), that are linked to kidney, liver and other health problems.

By designating the chemical as hazardous, the PFAS Action Act would allow EPA to clean up sites across the country and provide $200 million in funding for water utilities and wastewater treatment. The bill now awaits consideration in the U.S. Senate.

There’s just one problem, however, as the collective water sector opposes the bill.

On Wednesday, 13 key organizations representing the U.S. water sector drafted a letter expressing their objections to the legislation including 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 and the U.S. Conference of Mayors. In part, the letter states:

On behalf of organizations representing the nation’s municipal governments and drinking water and wastewater systems, we write in opposition to H.R. 2467, the PFAS Action Act of 2021. 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.

PFAS chemicals are man-made chemicals that have so far been found in the drinking water of more than 2,000 communities. PFAS chemicals are persistent, bioaccumulative, and toxic. These chemicals have been linked to harmful human health effects, including cancer, reproductive and developmental harms, and weakened immune systems.

As approved by the House, the bill would set a two-year deadline for EPA to finalize Safe Drinking Water Act (SDWA) regulations for two of the most common PFAS, PFOA and PFOS, that are “protective of the health of subpopulations at greater risk.”

Other provisions would:

• Establish an expedited 30-month determinization-to-promulgation timeframe for EPA’s development of future drinking water regulations for other PFAS, as compared to a SDWA statutory timeframe of 42 months for other contaminants;
• Require EPA to issue a drinking water health advisory whenever the agency finalizes a toxicity value and a validated testing procedure for a PFAS, unless EPA finds the PFAS is unlikely to occur in drinking water at a “sufficient frequency”;
• Direct EPA to designate PFOA and PFOS as hazardous substances under CERCLA within one year and to make a determination on such a designation for all other PFAS within five years; and
• Authorize funding for a new PFAS infrastructure grant program to help water systems pay for capital costs associated with installing treatment technologies that can effectively remove PFAS from drinking water.

U.S. Reps. Fred Upton (R-MI) and Debbie Dingell (D-MI), who introduced the legislation, applauded the passage of their bipartisan PFAS Action Act in the House.

“Clean drinking water is a top priority for Southwest Michigan families and communities, but dangerous PFAS contamination – like we saw in Parchment a number of years ago – is a real threat to our freshwater systems,” said Rep. Upton. “It’s clear that we need an all-hands-on-deck approach to actively prevent chemical spills, safeguard human health, and protect our environment. I am proud to have led this effort with my Michigan colleague Debbie Dingell to accomplish these goals and I’m especially glad to see the House pass this important legislation with strong bipartisan support.”

“Congress made clear once again to the American people that clean drinking water and combatting the PFAS crisis is a priority,” said Rep. Dingell. “We’ve known about these harmful forever chemicals for decades, and it’s time we have federal policies in place to combat these threats to our air, our land, our water, and our communities. I am grateful to have my close friend and colleague Representative Fred Upton as a strong partner in this fight – it’s true, it’s an American issue not a partisan issue when we’re talking about essentials like clean drinking water and environmental protections.”

Upton and Dingell introduced the PFAS Action Act package in April of this year. You can read a copy of the PFAS Action Act here.

The PFAS Action Act now heads to the Senate. According to AMWA, no imminent action is expected in the upper chamber, however, as the bill is believed to be far short of the 60 votes necessary to move forward.