As Congress tries to regulate ‘chemicals forever’, local water systems push back

WASHINGTON — Local water utilities fear lawsuits and high cleanup costs step up lobbying Congress as lawmakers move to regulate toxic chemicals found in drinking water.

The bill, the PFAS Action Act of 2021, has drawn bipartisan support and two Michigan lawmakers, Representatives Debbie Dingell, a Democrat, and Fred Upton, a Republican, are expected to bring the measure to the House for passage later this week.

The legislation would direct the EPA to regulate two of the most studied types of per- and polyfluoroalkyl substances, or PFAS, in drinking water. It would also designate these two chemicals as hazardous substances, which would kick off federal cleaning standards.

But water utilities representing local governments are also stepping up their lobbying on the regulation of ‘chemicals forever’, which are linked to multiple health issues such as high cholesterol, thyroid disease and testicular cancer. and kidneys.

“Water utilities are not responsible for PFAS in drinking water,” said Mike Keegan, regulatory analyst at the National Rural Water Association, which is a business group that represents local water utilities in rural areas. of the 50 states.

Keegan said the legislation, HR 2467, would make water services in rural areas financially responsible if a maximum contaminant level for chemicals were put in place by the EPA.

He added that some of these water utilities may not be able to afford the treatment technology required to remove PFAS. The bill provides for a $ 200 million subsidy to water utilities and wastewater treatment facilities to treat PFAS over four years, but Keegan said water utilities would likely need more funding. than the grant provides.

“We want to protect the public from PFAS, we want all of that,” he said. “But when you get into the mechanics (of Bill), what they really do is pass the blame on to the public.”

Chemical companies such as DuPont, Chemours, Dow Chemical and 3M along with others have used the ubiquitous chemicals to make non-stick cookware such as Teflon, waterproof clothing, ski wax, Scotchgard and other consumer products.

But due to the inability of chemicals to break down in the environment, PFAS can be found in drinking water across the country as well as in landfills and in the air.

The Environmental Working Group, a nonprofit that specializes in research and advocacy around agriculture, pollutants, and corporate responsibility, has found that more than 200 million Americans drink water contaminated with PFAS.

According to reports from the first quarter of this year, the National Rural Water Association spent $ 390,000 on lobbying related to water policy. Last year, the NRWA spent $ 1.57 million on lobbying, according to reports.

However, since federal law does not require a specific breakdown of the issues these entities are lobbying for, it is not clear how much money has been spent lobbying on PFAS policy.

Local water utilities in Colorado, Michigan and Florida, among others, have also started lobbying Congress on PFAS as lawmakers scramble to pass legislation to regulate chemicals.

Colorado Springs Utilities spent $ 30,000 to lobby Congress by educating “congressional staff about the state of United States Federal Waters and the potential impacts on Western water providers and various bills relating to the regulation of PFAS as a hazardous substance and associated water and wastewater obligations. utilities, ”according to lobbying records for the first quarter of this year.

The Southeast Michigan Council of Governments, which is a non-governmental organization that aims to improve transportation, environmental quality, and infrastructure in Southeast Michigan, spent $ 10,000 on lobbying for the first quarter of this year, according to reports. Lobbying interests of the groups included supporting a review of the PFAS.

The city of Satellite Beach in Florida also spent $ 10,000 on lobbying efforts for the first quarter of this year, according to reports.

One solution, Keegan said, is to exempt local governments and water utilities from liability.

Currently, only airports are exempt from this liability. The foam that the Federal Aviation Administration required airports to use for emergency and training purposes contained two of the most toxic and best-studied types of PFAS: perfluorooctanoic acid, or PFOA, and perfluorooctane sulfonate, or PFOS.

An argument from various business organizations that represent water utilities is that the polluters, or the manufacturers of the chemicals, should be the ones who should cover the cost of treating PFAS out of water systems.

“The only liability threat is really worrying for local governments,” Keegan said.

One particular sticking point is a clause in the bill that would designate these two most toxic and best-studied types of PFAS – PFOA and PFOS – as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act. of 1980, or CERCLA, which is also known as the Superfund Act.

Under this designation, water utilities are expected to meet federal sanitation standards.

The Association of Metropolitan Water Agencies, which is an organization of the largest water utilities in the United States, also raised concerns with the House Energy and Commerce Committee regarding the PFAS cleanup responsibility with which utilities would be blocked.

“This contrasts directly with the polluter pays principle, and we urge the committee to maintain responsibility for PFAS clean-up with the manufacturers and formulators of PFAS,” AMWA wrote to committee leaders. “At a minimum, the legislation should extend a similar CERCLA liability exemption to the water and wastewater utilities it provides at airports.”

Georgian members of the association include the Atlanta Department of Watershed Management, Augusta Utilities Department, Clayton County Water Authority, Cobb County-Marietta Water Authority, Columbus Water Works, DeKalb County Watershed Management and Macon Water Authority.

The association spent $ 90,000 last year on lobbying efforts, according to lobbying records. The organization spent $ 30,000 on lobbying for the first quarter of this year, according to reports.

National Association of Water Companies president and CEO Robert Powelson said in a statement that water utilities that are already preparing to remove PFOA and PFOS from drinking water should not be held accountable under CERCLA.

“It is imperative that the companies that produced and used these chemicals be responsible for paying to clean them,” Powelson said. “This is fundamental fairness and should help us stay focused on companies and sectors that have a real financial interest in slowing significant PFAS remediation. “

Large trading companies representing water utilities are hoping for exemption from liability. During the drafting of the bill at the House Energy and Commerce Committee, Representative David McKinley (RW.Va.), expressed his frustration that water utilities had not been exempted from the responsibility of the Superfund.

He tried to include an amendment that would protect water utilities from Superfund liability, but it was not approved.

If these organizations cannot secure the exemption proposed by McKinley, then Keegan expects to pressure the Senate to block the bill. For the bill to go to debate and passage, at least 10 Republicans and all 50 Democrats would have to vote for.

A similar bill passed the House last year by a vote of 247-159, with 24 Republicans joining the Democrats, but the bill died in the Republican-controlled Senate.

With Democrats now controlling both houses, as well as the White House, passage of the bill could become a reality, along with a host of new demands on water services.

“The people who are responsible for having (PFAS in the water) should be fined,” Keegan said.

Lawmakers say they are trying to act quickly.

“PFAS is an urgent threat to public health and the environment – it affects our drinking water, our health and our environment in Michigan and across the United States,” Dingell said in a statement after House Energy and Commerce Committee voted to send the bill to the House. floor.

“The number of contamination sites nationwide is increasing at an alarming rate, including our military bases, and we cannot wait to fix them. “

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