Per Fluoro Alkyl Substances (PFAS) Bills Travel Through Congress While Lobbyists Try To Narrow Restrictions

Source: Midwest Environmental Advocates

Perfluorinated Alkyl Substances (PFAS and PFOS) have received considerable attention in the news.  Last year, evidence emerged of a potential downplay of risks associated with the chemical class of compounds (read about it here and here).  The news flies against knowledge spanning decades of potential harms by various companies (such as 3M).  Legislation has been traveling through Congress to deal with the issue at hand.



Recent reporting by 'Politico Energy' outlines the problem with making legislation at the federal level with the class of chemicals:

PFAS ON THE MIND: Political pressure over toxic PFAS contamination in their districts back home is driving some lawmakers to press for an aggressive drinking water limit as part of a broader legislative package they hope will influence negotiations this fall over the annual defense bill, Pro's Annie Snider reports this morning.

The situation: The PFAS package included in the House's recently passed National Defense Authorization Act does not have any Safe Drinking Water Act provisions for jurisdictional reasons and instead focused on issues more directly related to the Defense Department, like ending the military's use of firefighting foam containing PFAS. Now, members of the Energy and Commerce Committee are seeking to strike a deal on broader legislation that could include drinking water limits, public reporting and other issues under their jurisdiction, Annie reports.

Back home: But whether the House can reach agreement on a bipartisan approach to the drinking water issue that goes beyond the Senate's own compromise defense bill remains an open question. And while that's playing out, some advocates are quietly worrying that a federal limit, done wrong, could end up causing more harm than good.

Some states — like Michigan, Vermont, New Hampshire and New Jersey — have their own ongoing efforts to set drinking water limits that are far lower than EPA's recommended limit. And in some states, laws are on the books that prevent or restrict their agencies from issuing regulations that are more stringent than the federal standards.

"Selfishly, I would say I wouldn't want the feds to move forward with a drinking water standard because I think we would get a much better outcome in Michigan from our process," said Charlotte Jameson with the Michigan Environmental Council, an advocacy group. "That said, I know there are a number of states across the country that have PFAS issues that are not looking to promulgate a state rule and I don't want to leave them in the lurch."

On what level is action appropriate to take regarding the issue with the rank of chemical compounds? Legislation has been traveling through Congress over the past six months. Read the testimonies below to get an idea of what has been said and reported about the hazardous class of chemicals,


Further, there is a short video showing statement from a former director of the American Chemical Council showing support for narrowing the restrictions on chemicals.  The council supports industry and their efforts to minimize the regulations which protect the American consumer.  Read the brief history below.  This will give the reader an idea as to the future of management of such dangerous chemicals.

Where Did We Come From?

The reporting by 'Politico Energy' describes the journey through Congress, which several PFAS bills are charting. Additionally, testimony from lobbyists (ACC) trying to narrow the broad class restrictions -- in favor of fewer restrictions are shown below:

PFAS TALKING: Six bills focused on contamination from toxic PFAS chemicals are up today before the Senate EPW Committee.

The panel is taking a different tack than lawmakers in the House. Senators are focusing on the chemical compounds that research has shown to be harmful to humans rather than tackling all of the roughly 5,000 members of the chemical class, Pro's Annie Snider and Anthony Adragna report. That includes, S. 1507 (116), on tap today from ranking member Tom Carper (Del.), Shelley Moore Capito (R-W.Va.) and Kirsten Gillibrand (D-N.Y.) that would require public reporting of emissions of a subset of PFAS under the Toxic Release Inventory.

The House-Senate divide on the issue echoes the overhaul of the Toxic Substances Control Act three years ago, when the Senate's compromise bill prevailed over the House's. That defeat still hangs over House Energy and Commerce Committee leaders as they take on PFAS. "I think they are coming into this like Rocky II: Somehow they’re going to come back and recapture their glory," said a chemicals industry lobbyist who speaks regularly with Democrats. Read more.

— Senators will hear from witnesses today spanning Kim White of the American Chemistry Council to Scott Faber of the Environmental Working Group, an organization in favor of aggressive PFAS regulation by handling the thousands of chemicals as a class. But ACC, which represents companies that manufacture, formulate or process PFAS, has supported EPA's PFAS Action Plan and efforts to regulate the two most well known PFAS — PFOA and PFOS — but has fiercely opposed efforts to regulate the whole class.

G. Tracy Mehan III of American Water Works Association will also testify. During last week's House hearing, AWWA was skeptical of overly broad regulation, particularly over concerns that utilities will be hit with the costs of treating water to remove PFAS.

Historically, the American Chemistry Council (ACC) has taken the position of narrowing any class of chemicals. The was exemplified in Former ACC Director Cody Sisco testimony back in 2011 -- shown in the video below:

Wow.



Next, below is the hearing which occurred back in May on the risks of PFAS and PFOS class of chemicals.

Whenever I get to watch the hearings in Congress, I like to read the testimony of the panel members.  Below are key documents from the Congressional Hearing which include initial testimony of witnesses present:



Erik D. Olson Testimony:

BRIEF SUMMARY OF TESTIMONY OF ERIK D. OLSON

PFAS unfortunately tend to share three problematic properties:

1. PFAS are highly persistent “forever chemicals” that don’t not break down easily and can accumulate in the bodies of people and food that we eat.

2. PFAS are highly mobile and spread quickly in the environment and are found in our drinking water, air, food, and homes.

3. PFAS are highly toxic and can be harmful at low doses (at low part per trillion levels).

Health Risks Posed by PFAS

As reviewed in a recent extensive NRDC scientific report, PFAS have been linked to a wide range of serious illnesses, some of which can occur at very low levels of exposure. For example, a massive study of 69,000 people exposed to PFAS in their drinking water near a factory in West Virginia found that there is a probable link between certain PFAS and cancer of the kidneys and testicles, thyroid disease, pregnancy-related hypertension, high cholesterol that can lead to heart disease, and the autoimmune disease ulcerative colitis. Other studies have confirmed many of these findings and shown that PFAS are also likely linked to lower fertility in women; harm to developing fetuses, infants and children; liver disease; and weakened immune systems. Unfortunately, evidence uncovered in litigation shows that the manufacturers of PFAS have known for decades that some of these chemicalspose serious health threats, but they hid the information from the public.

The Widening PFAS Crisis: A National Health Threat

PFAS, a class of about 4,700 chemicals, are found in the bodies of more than 98% of Americans—probably in every one of you, your families, and your constituents. A Harvard study found that just two members of this class of toxic chemicals, PFOA and PFOS, are present in the tap water of at least 16.5 million people in 33 states, including 6 million Americans at levels above EPA’s current weak and unenforceable “health advisories.” Evidence indicates that tens of millions of Americans may have tap water containing PFAS at levels CDC and independent scientists consider unacceptable.

Urgent Action is Needed to Address the PFAS Crisis

• “If you find yourself in a hole, stop digging.” Will Rogers’ adage applies here. We must:

o Stop approving new PFAS and new uses of existing PFAS.

o Phaseout manufacture of existing PFAS and products using them, such as firefighting foams, food contact substances, clothing, cookware, etc.

• Document and Publicly Disclose the Extent of the Problem.

o Test drinking water, groundwater, and soil for PFAS and publicly disclose results.

o Require PFAS manufacturers or processers to publicly disclose all uses and releases.

o Require EPA to establish “Safer Choice” PFAS-free cookware and other products.

• Regulate and Require Cleanup of PFAS.

o List all PFAS as hazardous substances under Superfund/CERCLA §102

o Require PFAS polluters to pay for cleanup and water treatment

o List the PFAS class as hazardous air pollutants (Clean Air Act §112), as toxic pollutants/hazardous substances under the Clean Water Act (§§307 & 311), and strengthen sludge rules to protect against PFAS contamination.

o Strictly regulate PFAS disposal and suspend PFAS incineration.

o Fix the Safe Drinking Water Act standard setting provisions and set strict healthbased National Primary Drinking Water Regulations for the PFAS class.

o Fund water utility PFAS treatment through a fee on polluters and federal funds.

o Cleanup federal facilities, in compliance with strict state and federal standards.

As I mentioned, the full record is located here.



Jamie DeWitt, Ph.D., DABT Testimony:

United States House of Representatives Committee on Energy and Commerce Subcommittee on Environment and Climate Change “Protecting Americans at Risk of PFAS Contamination & Exposure” 

Testimony of Jamie C. DeWitt, PhD, DABT

Associate Professor

Department of Pharmacology and Toxicology

Brody School of Medicine

East Carolina University

May 15, 2019

Brief Summary of PFAS

Per- and polyfluoroalkyl substances (PFAS) are described as “forever chemicals” due to their persistence in the environment. They aren’t readily broken down by sunlight, microbes, or other processes. We, as a scientific community, have not yet uncovered an easy way by which these chemicals can be degraded, so forever chemical is an appropriate description of PFAS. In addition, this class of chemicals is highly mobile once released to the environment. PFAS have been found everywhere scientists have looked, from the Arctic circle to the Marianas Trench.

When exposure occurs, PFAS move from the environment into bodies of plants and animals, including people. Because PFAS are so long-lasting in our environment, scientists do not yet know all of the ways we are exposed to these chemicals. What we do know is that exposure begins in the womb, even before we are born. Exposures then continue throughout the course of a person’s lifetime. Many Americans are exposed daily from sources such as the water they drink, consumer products, and food packaging that contains PFAS. Given that they are forever chemicals, even if production is stopped today, human exposure will be ongoing into the distant future. PFAS also are slow to be excreted from human bodies and can take years to be eliminated. Therefore, concerns for human health are not going away.

Once in our bodies, PFAS interact with a wide range of molecules and biological systems to produce multiple types of adverse health effects. Studies of human populations exposed to PFAS have uncovered adverse health effects to include: kidney and testicular cancer, decreased antibody responses to vaccines, liver damage, changes in serum lipids and cholesterol, increased risk of thyroid disease, increased risk of asthma, increased risk of decreased fertility, decreases in birth weight, and increased risk of pregnancy-induced hypertension and preeclampsia. PFAS are truly “multi-system toxicants.” These forever chemicals possess tremendous risks to Public Health – they are Persistent in the environment and in human bodies; they Bioaccumulate from the environment into the bodies of living organisms, including humans; and they are Toxic and able to produce adverse health effects in humans and wildlife.

Testimony

Chairman Tonko, Ranking Member Shimkus, and Distinguished Members of the Subcommittee on Environment and Climate Change, good morning and thank you for inviting me to speak with you about health effects of exposure to per- and polyfluoroalkyl substances, or PFAS, chemicals that are estimated to contaminate the drinking water of 19 million Americans1. My name is Dr. Jamie DeWitt and I am an Associate Professor of Pharmacology and Toxicology at the Brody School of Medicine of East Carolina University in Greenville, North Carolina. I have been conducting research on health effects of PFAS since 2005 with a focus on the immune system.

PFAS are a class of nearly 5,000 closely related chemicals that all contain a carbon-fluorine bond. This bond makes them highly stable, heat resistant, and versatile in manufacturing processes and consumer goods. This bond also makes PFAS extremely long-lived in our environment and our bodies because they do not readily degrade. The Centers for Disease Control and Prevention2 assesses the US population’s exposure to environmental chemicals in a cross-section of the US population. They have reported that 98% of Americans have one or more PFAS in their blood3. Currently, my state of North Carolina part of the PFAS crisis. To better understand PFAS contamination and health risks, I am part of the “PFAS Testing Network, 4” which is a collaborative partnership of seven different North Carolina-based universities using both federal grants and a substantial state investment to manage and focus our PFAS research efforts. The North Carolina Policy Collaboratory, 5 which was created in 2016 by the North Carolina General Assembly to better utilize academic expertise across institutions of higher learning within our State and assist policymakers with complex issues that rely on scientific input and expertise, oversees the Network. We can be a model for other states.

Regarding the health effects of PFAS, our scientific understanding is still somewhat limited. Of the 5,000 PFAS, only two have been well-studied and a handful of others have limited data.

That said, in the last couple of years there has been a concerted effort among researchers to expand our understanding of PFAS. A comprehensive evaluation of the toxicological data for 14 different PFAS compiled by the Agency for Toxic Substances and Disease Registry6 reported that people exposed to PFAS experience prevalence of a wide variety of health effects. These associations include decreased antibody responses to vaccines, liver damage, changes in serum lipids and cholesterol, increased risk of thyroid disease, increased risk of asthma, increased risk of decreased fertility, decreases in birth weight, and increased risk of pregnancy-induced hypertension and preeclampsia. Some populations have also seen increases in kidney and testicular cancer associated with PFAS exposure. These adverse health effects indicate that developing organisms, the immune system, the endocrine system, and lipid metabolism are all sensitive to PFAS exposure and that PFAS also have carcinogenic abilities. These adverse health effects also have been observed in experimental animals fed individual PFAS. Data from experimental animals is an important component of human health effects research as is research into the molecular mechanisms by which PFAS produce adverse health effects. It is this combination of data from studies of exposed human populations, experimental animals, and molecular mechanisms that has broadened our understanding of how PFAS exposure leads to adverse health effects in humans7. Finally, it’s important to note that as these health effects are being seen at levels lower than the US EPA Health Advisory Level of 70 parts per trillion set in 20168, we now know that this level is not health protective for all Americans.

Prevention, including vaccines, is a first line of defense against diseases. We need vaccines to be as effective as possible. Exposure to PFOA and PFOS, two well-studied PFAS, reduces the  immune system’s ability to produce antibodies, making our vaccines less effective. PFASassociated immune system effects observed in epidemiological studies of children and adults - and in experimental animal studies of individual PFAS - have supported a causal relationship. In 2016, the National Toxicology Program evaluated studies on immune effects of PFOA and PFOS and concluded that they are presumed to be immune hazards in humans9. This conclusion was based on evidence that PFOA and PFOS can suppress the ability of the immune system to make antibodies in experimental animals and evidence that they can do the same in humans8. The Program also highlighted evidence that PFOA and PFOS can affect multiple immune outcomes, including allergic responses, resistance to infectious disease, and autoimmune disease11.

The US EPA has not set a legally binding regulatory limit for any chemical in two decades; it is time for Congress to act. Of the 5,000 known PFAS, the vast majority have NO associated research data or standards for human biomonitoring. It is not feasible from a time or resource perspective to “TEST” our way out of this crisis. Employing a “CLASS” approach for ALL PFAS will be protective for vulnerable populations and the general public. It is not too late. Following the voluntary removal of PFOA and PFOS, levels of these PFAS have decreased in the environment and in our bodies. Since that time, replacement PFAS have increased in production. We need to learn more about these replacement compounds and ask ourselves, “Are these essential for the public good?”10 Thank you all for understanding the need for legislation that will diminish the number and amounts of PFAS contaminating our environment and our bodies.

Emily Marpe Testimony:

Testimony of Emily Marpe

Before the Environment and Climate Change Subcommittee of the House Committee on Energy and Commerce on “Protecting Americans at Risk of PFAS Contamination and Exposure”

May 15, 2019

Thank you for the opportunity to testify. My name is Emily Marpe, and until recently, I was a resident of an upstate New York home my family once called “Cloud Nine.”

On February 11, 2016, I received a letter from the Rensselaer County Health Department. The letter offered free water sampling and reassurance that PFOA had been detected in our water but that the levels were not likely to be above EPA guidelines.

Residents were being given bottled water – but only during the town clerk’s office hours, and only if you had tickets, which was a major inconvenience for a working mom with two kids. For the first time in my life, I had to ration my water.

On March 2, my tap water was tested. On March 12, my daughter, Gwen, and I returned home from recycling our bottles and found a message on the answering machine from Rich Elder, from the Rensselaer County Health Department. I called Rich, and he told me: “You guys better stop brushing your teeth” with tap water.

The test results for the water in my home in Petersburgh showed PFOA levels of 2,100 parts per trillion.

I immediately dropped to me knees and started to dry-heave while still on the phone. Rich tried to comfort me by saying it was like a drop of water in an Olympic-sized pool, that I would be the first on the list to get a filter.

That was the day I was forced to become an expert on PFOA – something no mom should ever have to do.

Before moving into Cloud Nine, we lived in a two-bedroom, one-bath trailer. At times, there were seven of us in the trailer.

In 2010, with help from my mom, I began the long and daunting process of buying my dream home – a spacious three-bedroom ranch on 2.38 acres in Petersburgh, with no neighbors.  

Although it was my dream house, many repairs were needed, and my family and I spent a month working around the clock to make the necessary upgrades. Every step of the process, I’d joke, was a different cloud, until the seller handed me the keys and I said, “I am on Cloud Nine.”

Our family tradition is to name our properties, and my stepfather surprised me with a sign in the shape of a cloud and the words “Cloud Nine.”

That day in October 2011 when my two children walked to the end of the driveway to finally pull out the “For Sale” sign was probably the proudest moment of my life. I wasn’t even 30 and I had my own home.

Little did I know then that our closest neighbor – Taconic Plastic – would change everything we had worked so hard for.

After the call from Rich, I learned everything I could about PFOA. The more I read, the more upset, anxious and angry I became. With the help of Michael Hickey, who detected PFAS in the water after his dad died from kidney cancer, I learned about the impacts of PFOA on other communities, including Parkersburg. The more I read, the more I realized that town officials were trying to play down the water contamination crisis. After I raised concerns, one town supervisor accused me of threatening hundreds of jobs. Nevertheless, I resolved to be at every town meeting and to take my case to state officials in Albany. It was not a role I ever wanted, but no one else was willing to step up to the plate.

Around the same time, my daughter, Gwen, was diagnosed with a lump in her breast, which sent me into a tailspin, given everything I had learned about the links between PFOA, cancer and other health effects. None of the people charged with protecting families like ours were listening – not even the medical community. By March 21, I was so beside myself with fear that I was rushed to the emergency room with a panic attack. I was so afraid of our water that our family didn’t shower without the window open.

The next day, Taconic Plastic offered to install a water filtration system into my home. But when the contractor came, he refused to share any documentation. It was only after I threatened to call the local news station that two Taconic Plastic employees relented.

On March 31, my family had their blood tested for PFOA. Many of my neighbors were being denied blood testing and water filters unless the PFOA in their well water was above 70 ppt.

On June 6, we finally got the blood test results in the mail. I stopped my car in the driveway and opened each envelope.

Keep in mind that the national average for PFOA in blood is about 2 parts per billion, or ppb.

I opened my son’s first, because he spent weekends with his father, and I figured his results

would be the lowest. I was right, but the number still shocked me: 103 ppb

Next I opened my daughter Gwen’s results: 207 ppb.

Then I open the results for me and my boyfriend: 322 ppb and 418 ppb, respectively. I was completely floored. We had only been living in Cloud Nine for four and a half years!

Less than two weeks later, I learned that the water in our local elementary school was also contaminated with PFOA.

I knew I had to sell my dream house, even though we would ultimately lose all the equity we had built. For a while, we split up among friends and were basically homeless. Ultimately, we bought a home in Hoosick Falls. The mortgage is more expensive, my daughter has been forced to change schools, I have a longer drive to work – and we still have to buy bottled water.

In December 2017, I found out I was pregnant. I was concerned from the start about birth defects and, as an expert on PFOA, I knew that I would not be able to breastfeed my baby.

Most women at 20 weeks are excited to to find out the sex of their baby; I was just relieved that Eliana’s eyes were in the right place and she had two nostrils.

Not surprisingly, she weighed just over six pounds, the smallest of my three children. I say “not surprisingly” because low birth-weight is a common health effect of PFAS chemicals like PFOA.

When my baby Eliana was just seven weeks old, we had her blood tested. To get it done, I had to hold her down while she screamed. The result: 75.9 ppb, even though it had been more than two years since I had stopped drinking contaminated water.

As I said, no mom should ever have to go through I’ve been through.

Congress needs to treat this contamination crisis like a crisis. It needs to end PFAS pollution and clean up PFAS contamination. At a minimum, Congress needs to force companies like Taconic Plastic to report their PFAS releases and force our water utilities to tell us if our drinking water is polluted with PFAS chemicals.

Thank you for the opportunity to testify today.

Brian Steglitz Testimony:  Click on Brian Steglitz's name to the left, which is hyperlinked to access his testimony.



Tracy Mehan III Testimony:

Protecting Americans at Risk of PFAS Contamination & Exposure

Presented by

G. Tracy Mehan, III

Executive Director, Government Affairs

American Water Works Association

Before the House Subcommittee on the Environment and Climate Change

May 15, 2019

Good morning, Chairman Tonko, Ranking Member Shimkus, and members of the subcommittee. My name is Tracy Mehan, and I am Executive Director for Government Affairs for the American Water Works Association, or AWWA, on whose behalf I am speaking today. I appreciate this opportunity to offer AWWA’s perspectives on the many issues surrounding perand polyfluoroalkyl substances, or PFAS.

AWWA’s 50,000 members represent the full spectrum of water utilities – small and large, rural and urban, municipal and investor-owned. We are an international, non-profit, scientific and educational society dedicated to protecting public health through the provision of safe drinking water. While AWWA is primarily a drinking water association, about 60 percent of our utility members are dual utilities, that is they have a division of drinking water and a division of wastewater and possibly stormwater as well. I speak not only from the perspective of AWWA, but as a former state and federal regulator and an adjunct professor of environmental law.

AWWA would like to bring to the subcommittee’s attention several issues regarding PFAS. We understand the committee’s concerns that PFAS compounds may pose both human health and ecological risks that warrant greater attention and management. The number of bills introduced regarding PFAS and the variety of issues they address illustrate the breadth of concern over these compounds.

PFAS compounds are a group of more than 3,000 man-made chemicals manufactured in the United States and other countries since the 1940s. The U.S. Environmental Protection Agency (EPA) reports that more than 1,200 PFAS compounds have been used in commerce, and that about 600 are still in use today. They may be found in food packaging, non-stick products, stainand water-repellent products, fire-fighting foams, polishes, cleaning agents and other commercial products. The most well-known and common of these compounds are perfluorooctanoic acid (PFOA) and perflurorooctane sulfontate (PFOS). Related compounds are also causing concern: perfluorononanoic acid (PFNA), perfluorohexanoic acid (PFHxA), perfluorohexanesulfonic acid (PFHxS), perfluorodecanoic acid (PFDA), perfluorobutanesulfonic acid (PFBS) and fluoropolymers made through the process known as GenX. Much of our current data is focused on legacy PFAS compounds that are no longer manufactured, such as PFAS and PFOA.

Currently 11 states have policies in place regarding PFAS compounds and drinking water, with four more developing policies. Also, 10 states have source water protection policies for PFAS, and at least one more state is developing such policies. One state, New Jersey, has its own maximum contaminant level, and several have MCLs in development. 

Use of Existing Authorities to Address PFAS

Drinking water utilities and state environmental agencies need to know where to focus monitoring resources to understand what risks may be in source waters. We need to know where PFAS compounds have been produced and in what volumes. There are existing tools that EPA could be using to a greater degree to help address such concerns regarding PFAS. In particular, there is the Toxic Substances Control Act (TSCA). TSCA has data-gathering authority that the agency could use to garner more information from the manufacturing sector about the number of PFAS compounds that have been developed, in what quantities they were produced and where they were produced. TSCA data indicates that manufacturers have already discontinued the use of a number of PFAS compounds, but state and local risk managers need more information than is currently available to manage legacy compounds and proactively manage PFAS that are currently in use. Deploying TSCA authorities in the service of safe drinking water is “source water protection” at the strategic level.

Utilizing its oversight authority over the work of federal agencies, we urge Congress to ensure that EPA takes advantage of existing authorities under TSCA and the Safe Drinking Water Act to manage risks posed by PFAS compounds. Using such authorities, the agency needs to: 

 -- provide a report in one year and update it every two years describing the location of current and past PFAS production, import, processing and use in the United States for individual PFAS compounds based on data collected through TSCA;

 -- appropriate actions taken or planned under TSCA to restrict production, use and import of PFAS and support improved risk communications with the public;

 -- actions taken by other federal agencies, and in particular the department.

 -- summarizes statutory and non-statutory barriers encountered in gathering and distributing information on PFAS in order to inform risk management decisions by EPA, states and local risk managers.

We understand the sentiment for designating some PFAS compounds as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). However, we must flag some unintended consequences of such actions.

Wastewater utilities receive and treat water from a range of sources from homeowners to industries. That water may contain PFAS compounds. Even though they are not the source of these compounds, wastewater or stormwater utilities could end up liable for cleaning up these substances. If biosolids from wastewater treatment plants have been applied to land as fertilizer, such liability increases. Removing PFAS from wastewater requires advanced technologies, such as granular activated carbon, ion exchange or reverse osmosis. Then, as with advance drinking water treatment techniques, there is the issue of how to dispose of the concentrated PFAS mix.

The Clean Water Act (CWA) comes into play as well. Information gleaned via TSCA to target assessments of PFAS in the environment will assist development of industrial pre-treatment actions under that act. CWA authority will also come into play in the development of analytical methods for PFAS in industrial wastewaters and in development of appropriate and reliable treatment methods.

PFAS Action Plan

EPA released its PFAS Action Plan earlier this year. While we saw some positive steps promised in that plan, we believe authorities exist for federal entities to do even more. Agency officials have provided briefings on that plan, so I will not repeat it in detail. EPA officials promised progress under the Safe Drinking Water Act’s (SDWA’s) process for developing drinking water standards, beginning with making proposed regulatory determinations for PFOA and PFOS this year. We urge Congress to support EPA’s Office of Water, particularly in appropriations, as it works through the rule determination process. It was monitoring under the SDWA’s unregulated monitoring requirements that set the stage for the current PFAS policy debate. EPA will require a second round of monitoring for additional PFAS in the upcoming fifth round of the Unregulated Contaminant Monitoring Rule. In late April, EPA proposed interim clean-up guidelines for PFOA and PFOS under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and Resource Conservation and Recovery Act (RCRA). EPA also has a process under way to determine if PFOA and PFOS can be listed as hazardous substances under CERCLA. Equally important, EPA committed itself to improving risk communication for PFAS compounds. Members of the public and policymakers such as yourselves are understandably concerned about the unknown risks associated with a group of contaminants that is both manmade and is seemingly an avoidable risk. Effective risk communication is significant to addressing these concerns.

With regard to the federal drinking water standard setting process, we understand that this process can be frustratingly slow. However, a scientific, risk-based and data-driven process that discerns what substances are to be regulated, and at what levels, is indeed going to take a significant amount of time. We caution against setting a precedent of by-passing these established processes via legislative action. The nation tested that approach with the 1986 Amendments to the SDWA with untoward results. That said, we are eager to follow the data on PFAS compounds wherever it may go in the investigative process so that we may know how to best protect public health. We will prepare our members to comply with any new regulations.

Removing PFAS compounds from water typically requires treatment techniques such as filtration through granular activated carbon or ion exchange. While these advanced technologies can be effective, they are also expensive, and generate waste streams that require specialized disposal methods that are not readily available across the country.

AWWA members are looking for a cohesive risk management strategy that addresses legacy compounds and ensures that current and future PFAS compounds are not a threat to the country’s water supplies. We are concerned that states are considering MCLs for PFAS compounds over a range of values that will have markedly different treatment implications, sometimes without adequate benefit-cost analysis. This makes intelligible, accurate, defensible risk communication impossible. Drinking water standards are part of a holistic risk management strategy. In our 2012 study, Buried No Longer, AWWA determined that the United States needs to spend about $1 trillion over 25 years to maintain and expand our current level of water service. Therefore, over time, regulatory actions needs to be prudently implemented to avoid aggravating affordability issues for customers, particularly those with low incomes. Water systems across the United States are striving to provide the best water quality possible at a reasonable cost to their customers. Investing in a treatment requirement based on inadequate information can leave fewer resources to address other known risks, such as failing infrastructure. 

Research

Research is key in addressing PFAS. The lack of health effects data on substances such as PFAS compounds has long held back regulatory determinations under the SDWA. Before a substance can be regulated, the SDWA requires that it “is known to occur or there is a substantial likelihood that the contaminant will occur in public water systems with a frequency and at levels of public health concern; and in the sole judgment of the Administrator, regulation of such contaminant presents a meaningful opportunity for health risk reduction for persons served by public water systems.” Research is expensive and has been inadequately funded at EPA.

Further research is needed in these areas:

• Health effects data to identify which PFAS compounds pose a human health risk;

• Analytical methods to quantify levels of PFAS compounds in environmental samples (natural waters, wastewaters, soil, finished water);

• Technologies to economically destroy PFAS compounds in wastes from drinking water and wastewater treatment so that these long-lived chemicals are not re-introduced into groundwater or surface waters; and

• Technologies to cost-effectively remove problematic PFAS compounds from drinking water and wastewaters to levels that do not pose public health concerns.

We urge Congress to ensure that EPA and other relevant agencies or research bodies have the tools and resources they need to answer the needs listed above.

AWWA and water systems across the United States are committed to providing high-quality drinking water and protecting consumers from demonstrable risks. To assure that PFAS risks are effectively and efficiently reduced, these compounds must be properly addressed within the scientific framework of the SDWA. Water systems also need Congress to ensure that EPA has the funding to properly execute its work under all of the available statutes to protect our nation’s water resources.

Finally, I want to note that AWWA and the Centers for Disease Control and Prevention recognized last week as “Drinking Water Week.” The theme this year was, “Protect the Source.”

I hope that the discussions at this hearing and the discussions this hearing generates will help us all do more to protect our sources of drinking water from substances posing a threat to human and environmental health. 

G. Tracy Mehan, III

G. Tracy Mehan, III, became AWWA’s Executive Director for Government Affairs in August 2015. Before that, he was a principal with The Cadmus Group, Inc., an environmental consulting firm. Mehan served as Assistant Administrator for Water at the U.S. Environmental Protection Agency from 2001 to 2003, directing both the Safe Drinking Water Act and Clean Water Act programs. He developed new policies and guidances on watershed-based permitting and water quality trading. He also promoted and expanded ambient water quality monitoring and innovative approaches to meeting the challenge of the infrastructure financing gap. Mehan served as director of the Michigan Office of the Great Lakes (1993-2001) and as Associate Deputy Administrator of EPA in 1992. He served as director of the Missouri Department of Natural Resources from 1989 to 1992, managing the state’s environmental, parks, historic preservation, geology and other programs. He represented Missouri in all negotiations over the management of the Missouri River. Mehan is a graduate of Saint Louis University and its School of Law. Mehan is an adjunct professor in environmental law at George Mason University School of Law.

What is the American Water Works Association?

The American Water Works Association (AWWA) is an international, nonprofit, scientific and educational society dedicated to providing total water solutions to protect public health and assure the effective management of water. Founded in 1881, the association is the largest organization of water professionals in the world.

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Jane C. Luxton Testimony:

Testimony of Jane C. Luxton

Protecting Americans at Risk of PFAS Contamination & Exposure

Before the House Subcommittee on the Environment and Climate Change

May 15, 2019

I. Introduction

Chairman Tonko, Ranking Member Shimkus, Chairman Pallone, and Ranking Member Walden, thank you for inviting me to testify today on legislation that has been introduced to address PFAS contamination. My name is Jane Luxton. I am a partner in the Washington, DC, office of the law firm, Lewis Brisbois, and co-chair of the firm’s Environmental and Administrative Law Practice.

I have practiced in the fields of environmental and administrative law for more than thirty years, in both the public and private sectors. My government service includes appointments as a trial attorney and senior trial attorney at the U.S. Department of Justice and as General Counsel of the National Oceanic and Atmospheric Administration, where I was responsible for implementing and enforcing numerous environmental and natural resource laws. My work as a private practitioner has covered a broad spectrum of federal environmental statutes. For my service at NOAA and the Department of Justice, I received the highest awards of the Commerce Department (Gold Medal Award, twice) and the Justice Department (Attorney General’s Award). My curriculum vitae lists other professional recognition I have received during my career. I am a graduate of Harvard University, with honors, and Cornell Law School.

I am testifying today on my own behalf, as an environmental and administrative law practitioner who has a strong interest in science policy issues, which has led me to follow developments relating to PFAS compounds. My colleagues and I at Lewis Brisbois have written numerous articles on PFAS science regulatory issues, which are noted in my CV. I am not representing any client on PFAS issues or legislation before the Committee.

Today I would like to speak to the broader issue of the challenges surrounding the regulation of PFAS chemicals and then I will address a few of the specific bills the Committee is considering.

II. Introduction to PFAS

Per- and poly-fluorinated substances, commonly known as “PFAS,” are a large family of chemicals consisting of 3,000 to 5,000 individual chemical compounds, of which perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”) are two of the most widely-known. PFAS have historically been used for a variety of purposes, including in the manufacture of goods such as textiles, paper, packaging materials, cleaning solutions, firefighting foam, and products using water or grease resistant coatings such as pots and pans. 

III. While there has been a significant amount of initial research done on PFAS, much of this research remains incomplete and more needs to be done to adequately understand the potential health effects of PFAS chemicals PFAS compounds have been manufactured since the 1940s and, because of their properties, have been widely used in product manufacturing and subsequently dispersed in the environment.

These chemicals are persistent in the environment, as they do not readily degrade. Some research has raised concerns over health effects caused by PFAS exposure. Scientific studies of PFAS compounds have primarily concentrated on PFOA and PFOS, but much less is known about the thousands of other PFAS chemicals. PFAS compounds vary in terms of specific chemical structure, chain length, and composition, and these differences appear to matter significantly in terms of fate and degradation in the environment, as well as toxicity, uptake, and retention in humans, plants, and animals. Dr. Linda Birnbaum, Director of the National Institute of Environmental Health Sciences and the National Toxicology Program, testified before the Senate Committee on Homeland Security and Governmental Affairs, Subcommittee on Federal Spending Oversight and Emergency Management last fall that “we do not have strong data on which to base conclusions for the great majority of thousands of PFAS and we have only limited findings that support [particular] adverse health effects.”1

 A great deal of academic and governmental research is currently underway to determine the extent of causal links between exposure to PFOA, PFOS, and the many other PFAS compounds and specific health effects in humans. There appears to be a consensus that more research is needed.

IV. State Responses to PFAS Contamination

Several states have implemented comprehensive sampling programs testing for PFAS contamination in drinking and groundwater. As sampling programs continue to yield positive results for PFOA- or PFOS-contaminated drinking or groundwater, states and communities have begun to take regulation of these chemicals into their own hands. Examples of state approaches include:

- Several states trigger remedial action based on the sum of the concentration of PFOA and PFOS exceeding a 70 part per trillion (“ppt") concentration limit (i.e., the current EPA drinking water advisory).

- Connecticut, Massachusetts, and Vermont are setting limits for the sum of five different PFAS, not just PFOA and PFOS.

- New Jersey and New York use a lower concentration ceiling than EPA and other states (a 10 ppt limit for PFOA and PFOS). New Jersey has issued a statewide Directive seeking information, remediation, and reimbursement of past costs and payment of future costs from PFAS manufacturers.

- Vermont triggers action based on the sum of five PFAS exceeding 20 ppt.

V. Federal Response to PFAS Contamination

As states and communities continue to implement their own regulations, risks increase that the result will be a patchwork of differing requirements around the country.

One way to avoid this outcome is to adopt workable, scientifically-based federal regulations to manage these chemicals. The federal government has several statutory mechanisms it can use to regulate PFAS chemicals, but it must proceed carefully to ensure new regulations are effective in addressing the problem.

A. When the government regulates, it must rely on up-to-date, credible scientific research and legally sound procedures to avoid negative, unintended consequences. As stated above, as many as 5,000 individual chemical compounds make up the PFAS family.

Of these, the three best known are PFOA, PFOS, and GenX. These are the compounds that are most commonly found in drinking water and on which most research has been done. However, even the research on these three chemicals remains largely incomplete.

Imposing blanket regulations on thousands of PFAS chemicals – as some of the proposed legislation seeks to do – when scientists agree we have at best limited information on most, risks losing focus on the highest priority concerns. As the Centers for Disease Control stated in its most recent report, “[f]inding a measurable amount of [PFAS] in blood does not imply that the levels . . . cause an adverse health effect,” and “small amounts [of PFAS] may be of no health consequence.”2

 An across-the-board approach would impose extraordinary burden and cost on federal agencies, states, and local governments, requiring funds that today’s federal and state regulatory agencies simply do not have, while diluting resources that should be on targeted on the highest risk chemicals.

Even chemicals of demonstrably significant concern, such as dioxin, PCBS, and PAHs, have been found, on examination, to differ significantly in terms of potency among individual congeners. In a similar vein, one of the most promising approaches for addressing the large number of PFAS compounds appears to be grouping them into categories with similar properties, as a workable way to assess relative toxicity. The alternative of attempting to impose a one-sizefits-all approach to regulating PFAS chemicals poses a very real risk of doing more harm than good. 

In addition, bills that direct agencies to issue specific federal regulations can present other challenges. For example, in promulgating regulations, agencies must adhere to the requirements of the Administrative Procedure Act (“APA”). The APA requires agencies to follow a series of steps, providing for transparency in decisionmaking, a defensible administrative record, analyses of the benefits and costs of the regulatory action and the feasibility of alternatives, and due process in the form of a public notice and comment period, if a regulation is to withstand review by the courts. As recently as the 2016 amendments of the Toxic Substances Control Act, Congress reinforced the need to adhere to these kinds of requirements in order to ensure the adoption of scientifically and legally sound rules.

B. Existing statutes provide authority to regulate PFAS chemicals

EPA’s February 2019 PFAS Action Plan3 includes directed action under both the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, and the Safe Drinking Water Act. CERCLA provides the authority for EPA’s Superfund program and allows EPA to use federal funds to clean up contaminated sites. EPA has initiated the regulatory process to designate PFOA and PFOS as CERCLA hazardous substances, and formal listing would give EPA additional power to require responsible parties to undertake and/or pay for remediation. But expanding this approach to all PFAS compounds, as H.R. 535, the PFAS Action Act of 2019, seeks to do, could lead to wholesale reopening of remediated sites, potentially overwhelming the program and undermining progress on the highest-risk targets.

The Safe Drinking Water Act is another mechanism that EPA may use to regulate PFAS chemicals. EPA has authority under the Safe Drinking Water Act to set standards for drinking water quality and implement federal programs to ensure drinking water safety. Specifically, EPA may set a Maximum Contaminant Level (“MCL”) that is the threshold limit on the amount of any one substance permitted to be found in public drinking water. The MCL process takes time and, understandably, many concerned communities are impatient to see action, but EPA’s Action Plan anticipates releasing a proposed MCL for PFOA and PFOS this year. It makes sense to see EPA’s recommendation and decide at that point if further legislation is needed.

VI. Additional Comments on Other Bills

H.R. 2577 would amend the Emergency Planning and Community Right-To-Know Act of 1986 to require reporting on releases of per- and polyfluoroalkyl substances through the Toxics Release Inventory. The PFAS of greatest concern are no longer being manufactured, and so releases of these compounds from manufacturing are extremely unlikely. Requiring reporting on thousands of other compounds, the toxicity of which is not established, is of uncertain value.

This proposed legislation would greatly expand reporting requirements in a way that is significantly more burdensome for U.S. businesses, including U.S. small businesses that often have limited resources to comply with complex and costly regulations.

VII. Conclusion

While the bills being debated are motivated by good intentions, the reality is that much more research needs to be done on PFAS chemicals in order to generate and act on accurate and reliable information. It is difficult to deregulate once regulations are put in place, even when those regulations may prove to be based on inadequate science. Perhaps the most effective focus for Congressional support at this point is providing additional funding for research and regulatory efforts that target priority concerns. 

That is a large amount of information to digest on one pass (one read).  Although, the report also provides context for the issue at hand.  How does Congress proceed from here?  What are the alternative chemical options?  These are essential questions which remain open.  I will continue to update as I see the issue appear in the news.  The chemical class is an important class which provides essential functions for everyday consumer products.  The time has come to deal with the toxicity issue and environmental clean up caused by the class of chemicals.



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