From Bloomberg Law (John Dunbar and Christina Brady):
After decades of inaction, the federal government has gotten serious about cleaning up PFAS, a class of compounds known as “forever chemicals” that have been linked to health problems and inhabit the bloodstream of nearly every American.
Congress has introduced dozens of bills mentioning “PFAS” so far in the 2019-2020 Congress, many more than in previous years. The boom in legislation has sparked a major increase in lobbying. In 2017, only four entities mentioned the issue in government lobbying reports. In 2018, the number grew to 35, and by 2019, it rocketed to 164.
More water utilities—which have pushed back against certain provisions to clean up PFAS—have lobbied on regulation of the chemicals than any other group. They rank above the air travel industry, cities, and chemical companies, a Bloomberg Law analysis shows.
“I continue to be shocked that people charged with keeping our water clean have been among the most vocal opponents of getting PFAS out of our water, and are in many respects just as bad as many of the polluters whose mess they are charged with cleaning up,” said Scott Faber, senior vice president for government affairs with the Environmental Working Group, a nonprofit advocacy organization…
One basic question underlies the debate over what to do about what is arguably one of the most pervasive public health threats facing Americans in years: Who is going to pay to clean up this mess?
Under proposed EPA regulation and congressional action, utilities are faced with removing the stubborn compounds from their systems and disposing of them in landfills which could be designated as Superfund sites. Water utilities are already dealing with an aging infrastructure, worries about lead, and costs associated with the coronavirus pandemic and its economic impact.
Among the tools in the EPA’s toolbox for cleaning up toxic chemicals like PFAS is the Superfund law, enacted in 1980, which gave the agency the authority to force polluters to pay for cleanup of toxic sites…
In July 2019, the Democrat-controlled House approved the National Defense Authorization Act (H.R. 2500), which contained an amendment by Michigan Democratic Rep. Debbie Dingell that would force the EPA to designate PFOA and PFOS as “hazardous” within a year, thus triggering the Superfund designation that would allow the EPA to compel cleanup.
An alliance of water associations wrote to the House and Senate armed services committees in August, saying the Superfund designation could “create liability for communities that encounter PFAS in their water treatment activities.”
The letter was signed by the American Water Works Association, the American Association of Metropolitan Water Agencies, the National Association of Water Companies, and the National Rural Water Association.
A coalition of industry groups also argued against the Superfund designation, saying such decisions are “not political questions that Congress is best positioned to address,” in a letter to the House. “EPA should retain its traditional authority to study potentially hazardous substances and to ascertain whether they should be designated under CERCLA.”
The letter was signed by more than a dozen industry associations, including the American Chemistry Council, whose members include 3M, which still manufactures PFAS compounds, and DuPont spinoff, Chemours Co., which now holds most of DuPont’s PFAS liabilities.
Faber, of the Environmental Working Group, said utilities aren’t usually big contributors of PFAS to sites that could be designated under Superfund and subjected to liability. And they don’t have deep pockets. The government usually goes after companies with resources, not “cash-strapped entities,” he continued.
Mehan, from the utilities group, said that EPA doesn’t sue municipalities under Superfund, but other entities—like polluters that have been declared responsible for cleaning up contaminated sites—”have and will. Hundreds of them.”
Mark W. LeChevallier is the former chief environmental officer for publicly traded American Water and is now a consultant. “Any utility has to be worried,” he said. “The ultimate disposal is an issue here. And that might be a concern that some utilities have. Will they have ultimate responsibility?”
In Colorado, where groundwater contamination is a problem thanks in part to the military’s use of firefighting foam at its facilities, state lawmakers proposed testing requirements for drinking water and setting limits for PFAS. But the proposal didn’t survive the bill’s first hearing.
“We had pushback from the utility companies,” said state Rep. Tony Exum Sr., a Democrat who represents a part of the state that has been contaminated with the chemicals. “To mitigate and prevent is very, very expensive, as well as enforcement.”
Similar to the federal level, the groups had liability concerns, which lawmakers sought to address, “but we just didn’t have enough time to move forward,” Exum said.
“We’re going to keep working on it so we can come to an agreement,” he continued. “We can’t take clean water for granted.”