U.S. House legislates (again) on PFAS, firefighting foam

Federal action is aimed at PPE exposure, drinking water and household products

“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.”

This was the conclusion to our last look at congressional action on so-called “forever chemicals,” just six months ago. With the 117th Congress now a quarter of the way into its constitutional life, House Democrats actualized that prediction. But passing the PFAS Action Act is but one indication of work underway across the federal government.

PFAS (per- and polyfluoroalkyl substances) is a large class of manmade synthetic chemicals that include perfluorooctanoic acid (PFOA) that’s persistent in the environment and long-linked with adverse health effects like cancer, immune system effects and fertility, impaired child development, high cholesterol and thyroid disease.

With the 117th Congress now a quarter of the way into its constitutional life, House Democrats are again focusing on PFAS legislation.
With the 117th Congress now a quarter of the way into its constitutional life, House Democrats are again focusing on PFAS legislation.

“These harmful chemicals didn't exist on this earth before World War II,” Rep. Debbie Dingell (D-Mich.) told the Rules Committee, then prepping her bill for floor action. “Nearly every American, including every one of you that are listening to me today, have PFAS in your blood.”

[Read next: PFAS exposure and risks: Your questions answered]

Gratitude for any action

While the PFAS Action Act is not entirely aimed at first responders, IAFF General President Edward Kelly said in a statement to FireRescue1 that firefighters “suffer the consequences” of daily PFAS exposure. “Too many of our brothers and sisters are dying of cancer.” Kelly said he was thankful for the bill’s passage to “finally create federal measures to reduce, limit and prevent the disproportionate level of exposure” to first responders.

The bill principally attacks the issue in the consumer realm – where firefighters live as well. In that respect, PFAS found on nonstick cookware, weatherproof clothing, or in cosmetics and even drinking water would be designated as hazardous chemicals. This means the Environmental Protection Agency (EPA) would have to reach a finding that PFAS/PFOA are toxic under the Clean Water Act and offer grants to municipal water systems.

The bill would, however, give the EPA six months to regulate how foam is incinerated to stop PFAS/PFOA emissions, with a narrow exemption from Superfund liabilities for “owners and operators of airports using PFAS firefighting foam” under current rules. Further, the EPA would consult with U.S. Fire Administration, Federal Aviation Administration (FAA) and other agencies on new guidance to reduce exposure.

NFPA Vice President of Outreach and Advocacy Lorraine Carli told FireRescue1 that the “complex topic is being looked at in a number of places,” such as codes and standards, welcoming “efforts to contribute to more understanding of this topic.” In fact, the NFPA is soliciting feedback until November ahead of an early 2022 update to NFPA 1971: Standard on Protective Ensembles for Structural Firefighting and Proximity Firefighting, which addresses firefighter PPE.

Research is in progress

As a committee report on Senator Jeanne Shaheen’s (D-N.H.) Senate companion to the Guaranteeing Equipment Safety for Firefighters Act incorporated by House and Senate conferees into the National Defense Authorization Act (NDAA) last year noted, “currently no published, peer-reviewed research on the prevalence and effects of PFAS in firefighter turnout gear” as of August 2020, though “this situation is starting to change.”

The National Institute of Standards and Technology (NIST) just began to investigate the question of PFAS and firefighters in March 2020, led by Dr. Rick Davis of the Flammability Reduction Group within the Fire Research Division. But politicians and policymakers will have to wait for results of his “measurement science in order to make performance standards,” as Davis refers to NIST work. Initially hampered by the pandemic, needed materials and testing instruments have been procured in advance, so the research continues.

NIST has up to three years to study PPE and PFAS in coordination with OSHA under this year’s NDAA, which charges Davis’ group with examining the “identity, prevalence, and concentration” of PFAS/PFOA in PPE through time as substances are released into the environment – think, close quarters like a firehouse and thereon – and as PPE is degraded with use. Under that law, NIST may consult others with “material interest in reducing unnecessary occupational exposure” by firefighters. Davis anticipates the first progress report could get to Congress in late 2021.

The NFPA’s Fire Protection Research Foundation published its own paper on the suppression performance of certain fluorine firefighting foams worthy of study, itself timely as states legislate on the matter. A dozen other state legislatures have acted on PFAS in foam in recent years, many prohibiting Class B foam – often unanimously. Others await committee or final action, such as this Ohio bill.

Military expects a long haul

Richard Kidd, deputy assistant secretary of defense for environment and energy resilience, briefed the press in July on Department of Defense (DOD) action: “Physics, chemistry, science establish the realm of the possible and dictate much of the parameters of our work,” he said. “Based on what we know today, it will take years to fully define cleanup requirements the department faces, and probably decades before that cleanup is complete.”

The Defense Department is working on both drinking water and foam contaminants. Its PFAS Task Force, created in July 2019, has led research and remediation totaling $1.1 billion in the time since.

“What sets DOD apart is the mission that we have to rapidly suppress fires that involve jet fuel,” Kidd indicated, adding that safe alternatives to piped water like bottled water and new filters are set in place in days upon detection. Such short-term actions for off-base drinking water have been taken at 49 locations.

DOD identified 698 installations, including National Guard sites “where PFAS may have been used and potentially released,” Kidd told reporters. Sixty-six of those are now in the remedial investigation and feasibility study phase.

As to AFFF, Kidd sees “promising candidates that will be able to suppress jet fuel-based fire, but as we continue our investigation, we must also consider factors such as compatibility, corrosiveness, viscosity, and human health and ecological toxicity.”

Another DOD representative indicated “good progress” with the new compounds in testimony last fall. The House Armed Services Subcommittee on Readiness learned last September, none of the six alternatives meet DOD performance requirements.

Kidd declared the PFAS issue “a multi-year and – if not multi-decade – effort without a rapid solution.”

More to learn and do

PFAS in drinking water is a known problem in many states, including in Michigan where “most folks have never heard of PFAS,” Rep. Fred Upton (R-Mich.) said. “In Michigan, we found out the hard way – again. Sadly, we know a little bit about water contamination. Think Flint, think lead. PFAS is bad, too. Really bad. The EPA has been slow at the switch.”

Massachusetts created a task force to probe the issue as well.

Further, “This problem has been occurring in North Carolina for years,” said Rep. Deborah Ross (D-N.C.), referring to Fort Bragg’s bad press for its contamination and Dupont runoff into the Cape Fear River. Ross suggested that “to anybody who wants to talk about the EPA, the new Secretary of the EPA is from North Carolina and is probably the perfect person to address this issue over the next five years.”

Seven out of 22 standing “priority open recommendations” by the Government Accountability Office for the EPA involve toxic chemical assessment. The GAO also recommended that the DOD include future PFAS cost estimates in its annual environmental report to Congress, having “not reported future PFAS cost estimates, or the scope and limitations of those estimates, in its annual environmental reports to Congress.” Its DOD review was mandated by the last NDAA.

At least two House Science subcommittees are expected to hold a hearing once a requested GAO report on how the federal government is coordinating research is released as soon as this fall. More legislative responses will likely follow, based on GAO findings. Already, the Committee is working with Rep. Lizzie Fletcher (D-Texas) to prepare her Federal PFAS Research Evaluation Act for reintroduction this session of Congress.

“We all want the same thing here,” Rep. Buddy Carter (R-Ga.) told the Rules Committee during discussion of the Dingell bill. “There's not a single person in this room who wants somebody taking chemicals that are going to harm them,” adding, “if there were a fire, you want that fire put out as quickly as possible.”

“We're killing a gnat with a sledgehammer,” Carter said, warning against overreaction, citing the chemicals’ use in medical devices and drugs, aircraft parts, including door seals, and clean energy technology.

“The longer we delay action, the worse the problem becomes,” Dingell countered.

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