As October approaches its end House and Senate negotiators remain far from agreement on a legislative deal to address per- and polyfluoroalkyl substances (PFAS) in the environment. Lawmakers had originally hoped to reach a deal to attach PFAS provisions to a must-pass defense policy bill in early September, but the ongoing delay has prompted speculation that action on PFAS could be punted to next year.
In the absence of an agreement, Democrats and Republicans in each chamber have continued to attempt to position their favored policies for inclusion in any deal. For example, in late September a House subcommittee approved a slate of 13 bills relating to PFAS, including measures that would require EPA to issue a drinking water regulation for total PFAS within two years and designate PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The subcommittee’s votes on most of the 13 bills fell along partisan lines, though Democrats and Republicans agreed to continue negotiating on some measures in the hopes of reaching a bipartisan agreement that could strengthen the House’s hand in negotiations with the Senate.
Among the bills advanced by the subcommittee were:
- H.R. 2377, requiring EPA to promulgate a national primary drinking water regulation for total PFAS within two years;
- H.R. 535, requiring EPA to designate all PFAS as hazardous substances under CERCLA within one year;
- H.R. 2533, directing EPA to establish a new program to award grants to drinking water systems to pay capital costs associated with the implementation of eligible treatment technologies; and
- H.R. 2570, establishing a PFAS Treatment Trust Fund, sponsored by fees imposed on PFAS producers, to offer grants to help drinking water and wastewater systems pay operation and maintenance costs associated with the removal of PFAS.
The House subcommittee votes came several months after the Senate passed a version of defense policy legislation that would take a different approach to addressing PFAS. The Senate-approved bill would require EPA to establish a drinking water regulation for PFOA and PFOS, expedite the SDWA regulatory process for other contaminants in the PFAS family, and require EPA to issue health advisories for various PFAS. Members of the EPW panel have kept up the pressure on EPA to address PFAS since that time, most recently posing numerous questions to an EPA official during an October 23 hearing about why the agency has not yet decided to regulate PFAS under SDWA.
The major sticking points between the House and Senate on PFAS appear to be centered on whether to require the regulation of the chemicals under CERCLA, as well as to what extent to alter the SDWA to speed the regulation of certain PFAS. Congressional leaders do not want the entire must-pass defense bill to be sidetracked over these issues, so if an agreement appears out of reach within the next month lawmakers could decide to pursue a PFAS agreement in another legislative vehicle, such as next year’s anticipated reauthorization of the Water Resources Development Act. But that avenue is also ringed with doubt, as dozens of House Democrats have threatened to oppose any defense bill this year that lacks a strong PFAS component.
AMWA and other water sector stakeholders have consistently raised concerns about proposals that would circumvent SDWA’s regulatory process in order to quickly require the promulgation of new regulations, or that could leave drinking water systems vulnerable to environmental cleanup liability under CERCLA. The association is continuing to engage with congressional staff as negotiations on PFAS go on.