Lawmakers back to square one on ‘forever chemicals’

Lawmakers must largely start anew after a major attempt to regulate a cancer-linked chemical that is spreading into the water supply across the United States was stripped from legislation this week, striking the best bet in years to address the problem.

The class of chemicals abbreviated as PFAS is used in products ranging from raincoats to nonstick cookware to firefighting foam. It’s been deemed a “forever chemical” due to its lingering persistence in the environment and in the human body.

The defense policy bill, the National Defense Authorization Act (NDAA) seemed like the best chance to move PFAS legislation. The must-pass bill targeted an institution that has been key in the spread of PFAS: the military, which has 425 sites that have been contaminated after exercises involving the heavy use of firefighting foam.

But negotiations on PFAS fell apart this week as some lawmakers were uncomfortable with addressing the issue beyond the military, particularly as they debated whether and how to force the Environmental Protection Agency (EPA) to regulate PFAS in drinking water.

“They were unwilling to compromise, which is not how you get things done in divided government,” a Republican aide said of the discussions. Democrats used similar words to describe the demise of the negotiations from their point of view.

Lawmakers on both sides of the aisle who were eager to stem the spread of the dangerous chemical lamented the collapse in talks. The issue had gained renewed attention in the last year, as lawmakers heard from those sickened by PFAS after drinking contaminated water as well as from actor Mark Ruffalo, who testified before lawmakers after starring in a movie about the substance.

Some funding to address PFAS was placed in a House appropriations bill, but the policy effort now rests squarely on a stand-alone bill being pushed by House Democrats over objections from Republicans that it may be too far reaching.

Rep. Paul Tonko (D-N.Y.), a sponsor of the legislation, sees that as a good thing.

“We know there was work done with the defense act, but we believe this issue is of such importance and of such urgency that is needs to stand in its own right and be addressed in a bipartisan, bicameral way that will provide public health standards and public health safety, so that we can move forward having done our work in full,” he said on Thursday. 

But many of the fights that doomed PFAS provisions in the NDAA are likely to resurface in January, when House Majority Leader Steny Hoyer (D-Md.) has promised to bring the bill to the floor. 

The bill should pass easily in the Democratic-led House, and may also make it through the Senate, where there is also an appetite to regulate the substance beyond the confines of the military. But another conference committee would likely hit the same snag. 

Democrats have been focused on getting a standard for drinking water that’s stricter than the 70 parts per trillion (ppt) currently recommended by the EPA. This is widely considered too high a number, and many states, tired of waiting for EPA action, have set more stringent standards using figures in the teens or lower. 

The parties haven’t gotten hung up on a certain number, but rather on factors that would influence the drinking water standard.

“At the very least we wanted to make sure that that a drinking water standard would protect vulnerable populations — children and pregnant women. All the science suggests PFAS levels can’t be much higher than in the teens, 16 or 17 ppt,” a Democratic aide told The Hill.

While they were unable to secure agreement on that provision, Democrats also tried to push for language on a no backsliding provision, forcing the EPA to set a drinking water standard for PFAS no higher than their current recommendation.

That idea seemed to have some traction with Republicans, who said they were looking for ways to move quickly to a drinking water standard, but wanted to ensure utilities would not be saddled with meeting a standard that requires expensive technology far beyond their means.

“We don’t want a standard that’s infeasible to be required of drinking water utilities, and the last thing is we don’t want the cost benefits that are part of the law right now to be disregarded,” a Republican aide told The Hill. “We wanted the practicalities to be considered.”

But Democrats said doing so could allow PFAS to continue to remain in the water supply, something they found untenable. 

“They wanted the ability to overrule the no backsliding provision with cost benefit analysis, so if it just costs utilities too much money, then nevermind let’s not do it,” a Democratic aide said. “But that ridiculous. That’s not protecting anyone, that’s not protecting health, its protecting bottom lines.”

Democrats’ broad PFAS package passed out of committee in November, tackling issues far beyond just drinking water.

Those provisions are another point of contention with Republicans, who have argued the bill is too broad, and potentially hamstrings the use of some valuable, nontoxic forms of the 5,000 or so chains of PFAS, rather than focusing on the two most-studied forms that are known to be dangerous.

Committee Republicans warned of “the unintended consequences that non-science based decisions on PFAS may have on consumer products and the economy,” after the bill passed through subcommittee.

Tonko is hopeful that pressure from affected communities will help drive the process and push lawmakers on both sides of the aisle to reach an agreement.

“We’ll do make every effort to make it bipartisan here in the house. And then, you know, public sentiment on this issue has been growing exponentially,” he said.

“You know, I’m still a believer that people drive this process.”