On May 3, 2023, the Senate Appropriations Subcommittee on Interior, Environment, and Related Agencies held a hearing on “A Review of the President’s Fiscal Year 2024 Budget Request for the Environmental Protection Agency.” On May 10, 2023, the House Energy and Commerce Subcommittee on Environment, Manufacturing, and Critical Materials held a hearing on “The Fiscal Year 2024 Environmental Protection Agency Budget.” For each Subcommittee, Michael S. Regan, Administrator of the U.S. Environmental Protection Agency (EPA), was the only witness. At the end of our memorandum, we have provided links to memoranda and blog items providing more information on topics discussed during the hearing.

Senate Subcommittee Hearing

During the Senate hearing, Senator Lisa Murkowski (R-AK) asked how EPA views the concerns of communities about having to meet the recently proposed national drinking water standard for six per- and polyfluoroalkyl substances (PFAS) and or remediating Superfund sites that could involve perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), which EPA has proposed to designate as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Regan responded that the infrastructure law provides up to $10 billion to address PFAS, with $5 billion dedicated specifically for small, disadvantaged, rural water systems. According to Regan, EPA wants to continue to match those dollars with its traditional budget and money from the U.S. Department of Agriculture (USDA) and other places to be sure that those communities are not left behind. EPA is investing in new testing methods to detect PFAS. Regan stated that EPA knows that there are some existing technologies, and that it hopes that the costs of those technologies will come down. EPA wants to engage with communities that have innovative ideas for mitigation and detecting.

Senator Jack Reed (D-RI) noted that the House Republicans’ proposed budget would cut EPA’s funding to the lowest level since 2013. Reed asked Regan if he was concerned that EPA would have an appropriate staffing level to do its job. Regan sated that he is concerned, noting that courts have removed many pesticides and herbicides from the market and that EPA needs the staff and resources to get new products on the market so that farmers will have the tools that they need.

Senator Katie Boyd Britt (R-AL) asked about the use of chlorpyrifos for soybeans, cotton, and other crops. Regan responded that the Ninth Circuit court set the bar very high, placing a burden of proof on EPA that historically it never had to meet, and EPA made a decision to follow the law. Britt asked whether EPA had appealed the Ninth Circuit’s decision, and Regan acknowledged that EPA had not. According to Regan, the court expressed its frustration with EPA’s decisions in the past and with where it was on chlorpyrifos, and he pledged as Administrator to respect the letter of the law. Britt expressed her hope that EPA would consider appealing.

Senator Patty Murray (D-WA), Chair of the Senate Appropriations Committee, asked if the deep budget cuts proposed by the House Republicans would undermine EPA’s ability to respond to and address PFAS contamination already in the environment. Regan noted that EPA issued a PFAS Strategic Roadmap, and it has about $10 billion from legislation to address PFAS, but that is not enough. EPA is working strategically with the resources that it has on research and development (R&D), partnering with its federal family to determine the safe levels and how to regulate PFAS. As EPA does this, it is leveraging billions of dollars from the bipartisan infrastructure law to ensure that disadvantaged communities and rural water systems have access to resources so that they can keep pace with EPA’s regulations. According to Regan, the budget proposed by the House would significantly set EPA back.

Senator Jon Tester (D-MT) asked about the difference in Superfund funding between the fiscal year (FY) 2023 budget and the FY 2024 request. According to Tester, the FY 2024 request is only 25 percent of the FY 2023 allocation. Regan responded that the budget request is based on the transition of the traditional Superfund program to the Superfund tax receipt program. Regan stated that Treasury’s forecast that $2.5 billion in tax receipts would be achieved in 2023 and that this money would be available for use in the 2024 program. Tester asked if this meant that EPA’s overall budget for Superfund cleanups would be as high or higher in 2024 than in 2023. According to Regan, predictions are that it will be higher, and that is why EPA is asking for a few more staff.

Senator Gary C. Peters (D-MI) asked Regan to speak to the importance of classifying PFAS as hazardous substances under CERCLA, as EPA’s plans to ensure that state agencies and affected communities are part of clean-up decisions. Regan noted that the relationship between the states and the federal government is important, on both planning and implementation. EPA believes that it is making significant progress in setting clean-up standards. Peters asked Regan if he could commit to establishing national primary drinking water regulations for additional types of PFAS as soon as possible or give the Subcommittee an idea of how he plans to deal with the broader issue of PFAS. Regan stated that EPA’s proposed rule addresses six PFAS and it has more on its radar. As EPA obtains more science and data, it will work across its federal family, especially with the Centers for Disease Control and Prevention (CDC) and others, to determine the health impacts. EPA will continue to move forward, regulating PFAS accordingly. Peters noted that he introduced the Federal PFAS Research Evaluation Act (S. 466) to direct a study by the National Academies of Science, Engineering, and Medicine to help inform decisions by the federal government, state governments, industry, and other stakeholders on how to deal with PFAS. Peters asked Regan to speak to the importance of having a more comprehensive federal research approach to inform better PFAS mitigation efforts. Regan stated that it is imperative that EPA have additional research into PFAS. EPA has requested $170 million to keep pace with the R&D being done with its federal family counterparts, as well as what is happening in academia and at the state level.

House Subcommittee Hearing

Representative Randy Weber (R-TX) asked about a recent proposed Toxic Substances Control Act (TSCA) rule where EPA announced it was missing information about economic impacts and workplace exposures and practices and asked the affected industry to submit this information. According to Weber, EPA’s proposed rule did not consider supply chain disruptions and where risk management action could adversely affect critical infrastructure, Inflation Reduction Act (IRA) investments, and national security objectives. Weber noted that the comment period on the proposed rule is 60 days and asked Regan to commit to extending the comment period so that stakeholders can collect and provide EPA the requested information and to enable EPA to conduct the necessary comprehensive review of supply chain and infrastructure impact. Regan responded that he does not think that EPA has proposed a rule that is incomplete, but that it might have requested additional information during the comment period.

Representative Frank Pallone (D-NJ) asked how the dedicated funding stream created by the Superfund tax reinstatement has helped to speed up or increase the number of clean ups started by EPA. Regan stated that EPA has seen an exponential increase and that in some communities, the calendars have moved forward by a year. Pallone noted that funds provided by the reinstated tax are helpful but do not cover every need of the Superfund program. He asked Regan to explain why the additional $355 million included in the budget request are critical for the Superfund program. Regan responded that there is a deficit in funding for many communities and these funds would address that.

Representative Rick Allen (R-GA) asked about EPA’s decision making regarding chlorpyrifos and whether EPA’s decision not to appeal the Ninth Circuit’s decision was because the U.S. government uniformly believed the 11 uses were unsafe. Regan responded that the Ninth Circuit indicated its frustration with the pace of EPA’s rulemaking. EPA took a look at the law and what the Ninth Circuit required and that resulted in its proposed rule.

Representative Debbie Dingell (D-MI) noted that EPA has proposed to designate PFOA and PFOS as hazardous substances under CERCLA. She asked how EPA plans to address the concerns of water and wastewater utilities and other entities that have liability concerns and that claim exemptions are required since they are not the source of the original PFAS pollution. Regan responded that EPA believes that CERCLA gives EPA enforcement discretion. He stated that water utilities, farmers, and agricultural stakeholders are not the target, but that the target is those who are polluting the air and water. To make polluters pay, EPA is requesting resources to increase its enforcement. According to Regan, EPA is already taking action against many PFAS polluters.

Representative John Curtis (R-UT) asked about the slow rate of TSCA new chemical approvals. According to Curtis, the U.S. Government Accountability Office (GAO) reported that EPA is getting increasingly worse at meeting the statutory deadlines for new chemical reviews, and that last year, EPA did not meet any deadlines. Curtis noted that user fees are up 600 percent, which is 25 percent of the overall budget. Curtis stated that it is not in EPA’s budget objectives to address the issue and asked Regan why it is not a priority. Regan responded that it is in EPA’s budget request and that it has asked for resources. According to Curtis, EPA has stated that it intends to go back and review previous chemicals because maybe they should not have been approved. Regan testified that it is not that EPA chooses to go back and review these chemicals, it is that the courts have found that prior Administrations did not follow the letter of the law or that they did not use the latest science to evaluate the chemicals.

Commentary

As reported in our memoranda on the earlier hearings held by the Senate Committee on Environment and Public Works and the House Appropriations Subcommittee for Interior, Environment, and Related Agencies, Republicans continue to press EPA on why it needs additional funding, while Regan continues to highlight EPA’s obligations under various statutes, including CERCLA and TSCA, as well as court decisions.

Additional Resources

Chlorpyrifos

EPA Releases Response Denying Objections to Its Final Rule Revoking All Tolerances for Chlorpyrifos (March 8, 2022)

EPA Announces It Will Take Action to Address Risk from Chlorpyrifos (August 24, 2021)

PFAS

EPA Publishes ANPRM Seeking Information to Assist in Consideration of Future CERCLA Regulations Regarding PFAS (April 13, 2023)

EPA Holds CERCLA PFAS Enforcement Listening Session (March 17, 2023)

EPA Proposes First-Ever National Drinking Water Standard for Six PFAS (March 16, 2023)

EPA Will Propose to Designate PFOA and PFOS as CERCLA Hazardous Substances (August 29, 2022)

Superfund Tax on Chemicals

IRS Proposes Regulations Regarding Superfund Tax on Chemicals (April 4, 2023)

Superfund Tax on Chemicals: What You Need to Know to Comply (July 13, 2022)

TSCA

EPA Will Propose to Prohibit Most Uses of Methylene Chloride under TSCA Section 6(a) (April 25, 2023)

GAO Report Finds Workforce Planning Gaps Contributed to EPA’s Missed TSCA Deadlines (February 24, 2023)

EPA Issues SNPRM Modifying and Supplementing 2021 Proposed TSCA Fees Rule (November 18, 2022)