Congress passes legislation to study impact of PFAS
Toxic ‘forever chemicals’ addressed in annual defense bill
“If you have never heard the phrase ‘PFAS’ before, you are bound to hear it in the future,” Senator Dick Durbin (D-Ill.) noted as final consideration of the annual defense bill got underway in late December. Used as a flame retardant and in firefighting foam on many military bases, “We're finding it's still there and it's still dangerous,” he added.
Having focused attention on toxic PFAS for over a year, a House task force can be proud that after one failed attempt in 2019, the 116th Congress ends with a significant effort to research the carcinogenic chemicals’ effect on humans and the environment making it into law.
Here’s how we got here.
PFAS: The beginning and basics
Perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS) and their 4,700 toxic perfluoroalkyl or polyfluoroalkyl cousins, known collectively as per- and polyfluoroalkyl substances (PFAS), are found in Class B foams, widely used to suppress flammable liquids like fuels typically found at airports, naval and flight-line settings.
PFAS are also found in cookware and upholstery, creating strong pathways and extending the lifespan of such chemicals in a firehouse, for instance. Off-base in the community, groundwater contamination has been identified as a danger after incidents near military installations and elsewhere. In fact, an April study found PFAS could be discharging from over 2,500 industrial sites around the country.
Interestingly, it was not until December 2020 – weeks before the fiscal 2021 National Defense Authorization Act (NDAA) passed – that the EPA released interim guidance on disposing of the chemicals. Still, the agency’s action doesn’t compare to the delays of deliberation in Congress.
Modern PFAS focus – in legislation
Nearly 50 bills were introduced during the 2019-20 session. Just two passed respective chambers as standalone bills: the PFAS Action Act by Rep. Debbie Dingell (D-Mich.), to require the EPA to designate PFAS as hazardous substances, direct testing and address drinking water; and the Protecting Firefighters from Adverse Substances Act of 2019, by Sen. Gary Peters (D-Mich.), to require FEMA to develop guidance on the use of foams and retardants.
Beginning with Section 330 of the fiscal 2021 defense authorization – a bill passed annually for 60 straight years – the bill phases out PFAS’ use in firefighting foam by the Department of Defense (DOD) and directs the Department to award cash prizes for development of an alternative to aqueous film forming foam (AFFF) without PFAS.
The bill also mandates a survey of technologies to replace the agent in aircraft hangars and containment systems used by the Navy, Air Force and other branches. Some 20 agencies will participate in an interagency working group given a year to come up with a strategic research plan focused in part on environmental remediation, degradation and toxic exposure.
“The problem with fluorocarbons is that they don't degrade once they're used,” DOD news indicated in a 2019 writeup about laboratory efforts to devise a non-PFAS replacement foam. (See DOD’s “Spotlight” reporting here and an outline of PFAS features in the NDAA here.)
House committees highlight the problem
In June 2019, the Natural Resources Committee considered the matter with a bill to bolster detection measures and direct the U.S. Geological Survey (USGS) to conduct nationwide sampling. The bill never got out of committee.
A House Science subcommittee took testimony on “sustainable chemistry” a month later, when Chair Haley Stevens (D-Mich.) called PFAS “an environmental and public health crisis in my home state of Michigan, which may have more than 11,000 sites contaminated with PFAS and PFOA chemicals.”
Stevens added that “companies and the public are rightly concerned about risks of industrial accidents like chemical spills, explosions or fires,” alluding to the Sustainable Chemistry Research and Development Act – companion bills introduced by Rep. Dan Lipinski (D-Ill.) and Senator Chris Coons (D-Del.). Lipinski’s bill sat in the Senate after House passage; Coons’ bill never moved.
While the task force spearheaded legislation in the House, freshman Rep. Harley Rouda (D-Calif.) led with hearings on his Oversight and Reform Subcommittee on the Environment, first by examining PFAS risks in March 2019, then on contamination concerns of the public in July 2019, and finally with “A Call for Immediate Federal Action” that November.
“Both the EPA and chemical manufacturers have known of the health hazards associated with PFAS for decades,” Rouda said at a September 2019 news conference with fellow task force members. Rep. Dan Kildee (D-Mich.) – a task force cofounder – said the group’s goal of legislating against PFAS “is crystal clear.” And Rep. Brian Fitzpatrick (R-Pa.) observed that exposures are “pervasive throughout the United States, not just the districts that have military installations that were using these forms.”
Second time’s the charm
The House first took action in the fiscal 2020 defense bill when the Armed Services Committee adopted by voice vote – an indication of broad support – an amendment to create a health information database for servicemembers, funding for a USGS contamination study and review of DOD remediation. But the Senate did not and ultimately won out when conferees in the two bodies reconciled differences. In fact, the PFAS issue specifically put “a drag” on the 2020 defense bill, wrote Defense News at the time.
House Majority Leader Steny Hoyer (D-Md.) issued a statement after that bill passed without PFAS, noting over 400 DOD sites had “known or suspected” contamination, accusing the Trump of “all talk, no action,” and promptly scheduling Dingell’s bill for floor action in January. Rep. Anthony Delgado (D-N.Y.), a conferee on the 2020 bill, refused to sign off on the final version because fellow conferees from the House and Senate left out a PFAS provision unanimously adopted by the House, leaving Delgado “deeply frustrated by an incredibly flawed process completely void of transparency.”
Senators have certainly wanted to legislate on this issue. In August 2019, Gary Peters (D-Mich.), Cory Gardner (R-Colo.), Dan Sullivan (R-Ark.) and Maggie Hassan (D-NH) introduced the Protecting Firefighters from Adverse Substances (PFAS) Act help protect the health and safety of firefighters and emergency responders frequently exposed to PFAS in foam.
IAFF General President Harold A. Schaitberger issued support, adding to the Senators’ press statement that, “Unfortunately, these brave men and women are exposed to dangerous ‘forever chemicals’ while serving their communities, subjecting them to higher risks of cancer and other serious health effects.”
Peters had authored a provision to cease AFFF use with PFAS in FAA regulations within three years under an FAA Reauthorization passed in 2018, noting at the time the disparity between DOD and domestic policy: “It makes no sense that airports should be required to adhere to a military specification that even the Department of Defense deems unsafe,” Peters observed.
With bipartisan work, however, the Senate followed suit on the fiscal 2021 bill, and provisions were kept in the final package. So, after 20 combined votes between the mid-July 2020 consideration by the House and the New Year’s Day 2021 passage into law by the Senate, Congress completed the first successful veto override of President Trump’s tenure. Congress must now fund the effort.
Having led fire science in developing AFFF, the DOD must now lead in developing PFAS-free alternatives.
“This is a long enduring thing,” Armed Services Committee Chairman Jim Inhofe (D-Okla.) said prior to the New Year’s Day vote on final passage. “We've started working on next year's bill now.”
Expect the House to again go first in addressing drinking water and other civilian PFAS-related environmental and public health concerns during the 117th Congress.