House PFAS protection bill passes with support from McKinley, opposition from Miller and Mooney

The U.S. House of Representatives has again passed legislation aimed at protecting Americans from industrial chemicals whose extensive contamination and deleterious health effects have left a toxic legacy in West Virginia.

Overcoming opposition from two of West Virginia’s three House members, the sweeping legislation seeking to restrict water and air pollution from per- and polyfluoroalkyl substances (PFAS) approved by the House last week would require the U.S. Environmental Protection Agency to establish a national drinking water standard for certain types of these substances.

PFAS are known as “forever chemicals” because they don’t break down in the human body and the environment. They can be found in food, household products and drinking water.

The bill, HR 2467, would implement a drinking water standard within two years for at least two of the most extensively found PFAS, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), and designate those two PFAS as hazardous substances under the EPA’s Superfund program that allows federal authorities to respond to releases or threatened releases of such substances.

Rep. David McKinley, R-W.Va., was among the 23 Republicans to join 218 Democrats in voting for the legislation. Rep. Alex Mooney, R-W.Va., and Rep. Carol Miller, R-W.Va., were not.

Mooney characterized HR 2467, also known as the PFAS Action Act of 2021, as directing the EPA to make a “one-size-fits-all rule regulating PFAS” in a statement prior to the House vote. Miller called the legislation “overreaching” in a statement, adding that she felt the legislation could have a negative impact on cellphone and medical device manufacturing processes that use PFAS.

The legislation has been endorsed by the Environmental Working Group, the Union of Concerned Scientists, Consumer Reports, the Green Science Policy Institute, the League of Conservation Voters, the Environmental Law & Policy Center, the National Wildlife Federation, the Natural Resources Defense Council, Food & Water Watch, Safer Chemicals, Healthy Families and the Southern Environmental Law Center.

But the U.S. water sector has opposed the legislation, arguing that municipal drinking water and wastewater utility ratepayers could face overwhelming financial liability to clean up PFAS that were legally disposed of through the water treatment process.

“We believe water and wastewater utilities, when acting in accordance with all applicable laws, should be provided an exemption to protect the utilities and water customers from bearing the costs of cleanup,” 13 organizations representing the nation’s municipal governments and drinking water and wastewater systems wrote in a letter to House members in opposition to the bill last week.

The letter was signed by the American Council of Engineering Companies, the Association of California Water Agencies, the California Association of Sanitation Agencies, the National Association of Counties, the National League of Cities, the National Water Resources Association, the Water Environment Federation, the American Water Works Association, the Association of Metropolitan Water Agencies, the National Association of Clean Water Agencies, the National Association of Water Companies, the National Rural Water Association and the U.S. Conference of Mayors.

Those groups expressed their fear to House lawmakers that if hazardous waste landfills where utilities would have to dispose of PFAS-laden filters under a drinking water standard were to become Superfund sites, then water utilities could be treated as PFAS polluters and be responsible for a portion of cleanup costs, forcing the burden of cleanup costs onto ratepayers.

HR 2467 would require the EPA to place discharge limits on industrial releases of PFAS and provide $200 million annually to upgrade public water treatment infrastructure from fiscal years 2022 through 2026 until expended.

Some environmental and chemical safety advocates wanted to see the legislation go further, noting the bill focuses only on PFOA and PFOS.

The EPA does not have enforceable limits on the levels of PFOA or related chemicals in drinking water.

The International Agency for Research on Cancer classified PFOA as a possible human carcinogen in 2017.

In January, DuPont announced that the chemical conglomerate, along with Corteva and the Chemours Company, which was formed as a spinoff of DuPont’s performance chemicals division, agreed to establish a $1 billion maximum escrow account to address potential future PFAS liabilities.

The legislation has been referred to the Senate Environment and Public Works Committee, where proponents of the bill hope it doesn’t die like a previous version of the measure did in the same committee in the previous session of Congress after the House approved it.

Sen. Shelley Moore Capito, R-W.Va., the top-ranking Republican on the committee, did not specify her stance on the bill in a statement when asked for it Tuesday, staying noncommittal as she touted the importance of preventing pollution from PFAS.

“I will continue to track legislative proposals as we work to address this issue,” Capito said in part.

Capito and Sen. Joe Manchin, D-W.Va., were among the 52 senators who cosponsored a Senate version of the bill in 2019. Manchin’s office did not specify his stance on the bill when asked Tuesday.

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