On October 20, 2021, the Senate Committee on Environment and Public Works held a hearing on “Evaluating the Federal Response to the Persistence and Impacts of PFAS Chemicals on our Environment.” The sole witness called before the Committee was the U.S. Environmental Protection Agency (EPA) Assistant Administrator for the Office of Water, Radhika Fox. The focus of the hearing was to address the recently released EPA Strategic Roadmap for per- and polyfluoroalkyl substances (PFAS). More information on EPA’s Strategic Roadmap is available in our October 19, 2021, memorandum.

More than half of the Committee members were present for the hearing, each relaying an experience that either they or members of their communities have had with PFAS. The line of questions posed by the Committee members focused on five main concerns: liability for airport facilities that have used and continue to use PFAS in firefighting operations; the need to set a federal Safe Drinking Water Act (SDWA) standard for PFAS; how EPA will work with states and tribes in addressing PFAS moving forward; the repeal of the Clean Water Act (CWA) Navigable Waters Protection Rule and its replacement with the pre-2015 Waters of the United States (WOTUS) rule; and the need to pass both the Infrastructure Bill and the Build Back Better Bill to assist EPA with funding to address PFAS. The Toxic Substances Control Act (TSCA) was only mentioned once during the hearing. Senator Shelley Moore Capito (R-WV) provided her opening remarks and discussed actions underway to address PFAS, including using TSCA Section 8 reporting requirements as a means of informing EPA. More information on EPA’s proposed reporting rule is available in our June 11, 2021, memorandum.

Senator Jim Inhofe (R-OK) expressed concern over potential enforcement actions taken by EPA against aviation facilities and operators for the prior use and continued use of PFAS firefighting foams. Senator Tammy Duckworth (D-IL) also addressed the use of PFAS firefighting foams and how the continued use may be necessary, but has created serious water quality issues for Illinois. Senator Duckworth probed Assistant Administrator Fox on how EPA would work to rectify the need balanced against the harm. Fox responded that there must be strong interagency cooperation moving forward to address PFAS regulation and remediation. Fox stated that if aviation personnel are working under the guidance of the Federal Aviation Administration (FAA) and the Department of Defense (DOD) in the use of these firefighting foams, EPA will not take enforcement action. Fox reiterated that a key aspect of the PFAS roadmap is working to find substances that can take the place of PFAS currently in use, such as these firefighting foams. Senator Inhofe pushed further, asking Fox if there would be an exemption in place for the aviation industry if a PFAS disaster were to occur in the interim. Fox was noncommittal in her response, but noted that the proposed rulemaking for designating certain PFAS chemicals as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is projected to be published for public comment in the spring of 2022.

Senator Capito repeated concern over PFAS exposure through drinking water. She noted that while there are already state PFAS safe drinking water standards, the timeframe to establish a new national standard that is reflective of known risks will be long under the PFAS roadmap. Senator Capito also noted that the roadmap is extensive and has a broad agenda, and she urged Fox to push the national safe drinking water standard to the top of the agenda. The timeline for PFAS drinking water exposure was also a concern for Senator Benjamin Cardin (D-MD). Senator Cardin relayed issues with some of Maryland’s water treatment plants that work to remove PFAS. He stated that there have been times in the past when these plants have been taken offline because of PFAS overload. Fox agreed with these sentiments and discussed a timeframe for addressing water quality. She referred the Committee back to the October 18, 2021, EPA announcement of a national PFAS testing strategy and stated that the first test orders will be issued in a few weeks. Fox also discussed the formation of a scientific advisory board, a GenX chemicals toxicity assessment and subsequent health advisory, as well as EPA’s goal of having a proposed rule open for public comment by this time next year. Overall, Fox was confident that EPA is moving rapidly to address the concerns.

When asked by Senator Capito whether water treatment plants would face liability when left with the responsibility of disposing of the removed PFAS, Fox provided a two-part response. Fox noted that if PFAS chemicals are designated as hazardous substances under CERCLA, the procedures that are already in place for disposal of hazardous substances by water treatment plants would apply. In terms of biosolids, Fox stated that EPA is engaged in further study and intends to publish risk assessments for these biosolids within the next few years.

Senator Cardin then shifted the conversation toward remediation in the seafood industry and concerns over safe food stock. He inquired how the EPA roadmap will work with states in addressing remediation and fish advisory notices. As part of the roadmap, Fox testified that EPA will be partnering with the Environmental Council of the States (ECOS) to work on the issue with states and tribes. Fox noted that EPA Administrator Michael Regan has a state regulatory background and has made it part of his agenda to partner with and foster dialogue between EPA and state and tribal governments. The EPA roadmap will work to create ambient water quality criteria to establish PFAS water quality standards under the CWA.

Senators Cynthia Lummis (R-WY) and Debbie Stabenow (D-MI) each questioned Fox on how EPA intended to address a national safe drinking water standard while balancing state needs and federal agency needs. Senator Stabenow described how Michigan has a state drinking water standard, but at military bases, DOD does not always adhere to state standards. Senator Lummis noted prior delays in communication and transparency by EPA when working with states. Fox agreed with the Senators about the importance of federalism and stated that it is the intent of EPA to establish a floor for PFAS drinking water standards. The federal floor would allow for each state to determine if there is a need to impose a stricter drinking water standard for their respective communities. Fox also noted that the White House Council on Environmental Quality has launched an interagency council of Deputy Secretaries to assist in implementing the national drinking water standard.

Senator Kevin Cramer’s (R-ND) concerns with the roadmap stemmed from EPA rules that may be overly burdensome for more rural states, such as his. Senator Cramer was also concerned about what Fox saw as the “more durable” WOTUS rule in response to two federal district courts in New Mexico and Arizona vacating the Navigable Waters Protection Rule. In response, Fox informed the Committee that both EPA and the Army Corps of Engineers have directed regional offices to operate under the 1986 WOTUS rule while a two-step rulemaking occurs to solidify the pre-2015 WOTUS rule. The goal is to prevent states and industry from CWA uncertainty. Senators Lummis and Joni Ernst (R-IA) each pushed back against the shift in defining which U.S. waters are subject to the CWA and requested hard data on environmental harms caused by the now-vacated Navigable Waters Protection Rule. Senator Ernst’s concern related to the ranchers and agricultural community of her home state of Iowa. Fox repeated her earlier response, noting that the repeal was at the hands of the district courts and that both EPA and the Army Corps of Engineers have returned to the prior WOTUS rule in response to the judiciary. Fox did state that EPA has no intention of removing exemptions for prior committed farmlands. When pressed about how the WOTUS rule would affect other agricultural concerns expressed by Senator Ernst, Fox stated that she was unable to predict how future rulemaking would impact agricultural regulations.

Senators Mark Kelly (D-AZ), Duckworth, and Tom Carper (D-DE) each took the opportunity presented by the hearing to illustrate that both the Infrastructure Bill and the Build Back Better Bill allocate funds for EPA, and specifically $10 billion in PFAS funding. In his closing remarks, Senator Carper asked Fox what Congress can do to support EPA in its initiative to address PFAS, noting the level of concern expressed during the hearing. Fox noted that PFAS is of great concern to the health of the American people and the environment and that EPA has lost more than 1,000 career staff during the prior Administration. Fox agreed that funding to rebuild water infrastructure and rebuild staff was critical to addressing PFAS.

Commentary

Outside of a few vocal Senators’ disapproval of EPA’s adoption of the prior WOTUS rule in implementing the CWA, there was a general sense of approval of the actions EPA has announced it will be taking to address PFAS. The largest issue that Senators had was the amount of time that EPA plans to take to achieve its action plan and roadmap. Most Senators expressed a pressing need to address PFAS in their states’ groundwater, lakes, fishing industries, and water treatment systems. Assistant Administrator Fox resonated with their concerns, but noted that rulemaking requires certain procedural steps, including conducting further studies and data collection for the record and holding a public comment period for each proposed rulemaking effort. Fox stressed that EPA intends to use every statutory authority given to the Agency to tackle PFAS research, restriction, and remediation. The PFAS roadmap is designed to have an integrated approach so that not just one chemical or one exposure pathway is addressed at a time. When speaking with Senator Carper during closing remarks, Fox noted that what Congress can do to assist EPA in this task is to pass the Infrastructure Bill and consider granting EPA additional statutory authority. Senators will have until November 3, 2021, to file additional questions for the record. Assistant Administrator Fox’s responses must be filed by November 17, 2021. These additions to the record may prove worth reading, as almost half of the Committee was not present, and those that did participate in the hearing asked in-depth questions and showed a high level of engagement about EPA’s PFAS plan.