The Nickel Report

On March 15, 2019, the House Subcommittee on Environment and Climate Change held a hearing titled, “Protecting Americans at Risk of PFAS Contamination & Exposure.” The hearing examined approaches to eliminate or reduce environmental and health risks to workers and the public from per- and polyfluoroalkyl substances (PFAS). At the hearing, there was discussion of proposed PFAS Legislation including:

• R. 535, PFAS Action Act of 2019

Reps. Dingell (D-MI) and Upton (R-MI) - The bill would require the EPA Administrator to designate, within one year, all per- and polyfluoroalkyl substances as hazardous substances under Superfund (CERCLA).

• R. 2377, Protect Drinking Water from PFAS Act of 2019

Reps. Boyle (D-PA) and Fitzpatrick (R-PA) - The bill would require EPA to set a drinking water maximum contaminant level (MCL) for total per- and polyfluoroalkyl substances to protect public health.

• R. 2577

Rep. Delgado (D-NY) - The bill amends the Emergency Planning and Community Right-To-Know Act of 1986 to require reporting on releases of per- and polyfluoroalkyl substances through the Toxics Release Inventory.

• R. 2596

Rep. Kuster (D-NH) - The bill amends the Toxic Substances Control Act (TSCA) to prevent the introduction of any new PFAS into commerce.

• R. 2600, Toxic PFAS Control Act

Rep. Dean (D-PA) - The bill amends Section 6 of TSCA to comprehensively regulate per- and polyfluoroalkyl substances. The bill would prohibit the manufacture of any new PFAS chemical substance within one year and existing PFAS within two years. It would also prohibit the processing of existing PFAS within three years.

• R. 2605

Rep. Stevens (D-MI) - The bill would require the EPA Administrator to issue a final rule within 180 days listing PFAS as a hazardous air pollutant under the Clean Air Act and would require the Administrator to identify source categories for PFAS within one year.

• R. 2608

Rep. Sean Patrick Maloney (D-NY) - The bill would require comprehensive health testing of all PFAS under TSCA and reporting by all PFAS manufacturers and processors on health, safety and environmental impacts.

Congress Urged to Regulate PFAS as a Class

During the hearing, a number of witnesses argued that PFAS should be regulated as a class because they are persistent in the environment. They argued that this approach would ensure protection against all PFAS and not just a few of them at a time. Many of the bills that were discussed in fact treat PFAS as a class and not individual compounds or even classes or groupings of compounds.

Erik Olson of the Natural Resources Defense Council supported HR2600 which would “Phase out manufacture of PFAS and products using them,” rather than trying to regulate 4,700 or more PFAS one at a time[1]

Sound Science

The rush to set PFAS standards at barely detectable concentrations stems in part from the understandable desire to avoid any potential risk, no matter how speculative or small. However, when regulations ignore sound science, risk assessment and a cost/benefit analysis, there are often unintended consequences, including the mis-allocation of societal resources and imposition of undue costs to society. Instead of rushing to ban production of all PFAS or PFAS-containing products or to direct agencies to issue regulations while the science is evolving, Congress and others need to support EPA efforts to resolve expeditiously key scientific issues in order to enable constructive regulatory solutions.

[1] See Testimony of Erik D. Olson, Before the United States House of Representatives Committee on Energy and Commerce Subcommittee on Environment and Climate Change, Hearing Entitled: “Protecting Americans at Risk of PFAS Contamination & Exposure,” May 15, 2019.