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Bipartisan Group of Senators Prepare to Address PFAS/PFOA Regulation

Months of discussions culminated this week in a bipartisan agreement in the Senate to address the regulation of the Per- and polyfluoroalkyl substances (PFAS/PFOA). Led by Senator Shelly Moore Capito (R-WV) and cosponsored by Senate Committee on Environment and Public Works Chair John Barrasso (R-WY) and Ranking Democrat Tom Carper (D-DE), an amendment addressing the public health threats associated with the chemicals will be offered to the National Defense Authorization Act (NDAA) during Senate floor debate scheduled to begin next week.  The amendment encompasses several bills introduced over the past months.  If adopted in the Senate, it appears highly likely that the measure will become the legislative vehicle for Congress and the Administration to finalize a PFAS/PFOA response in the coming years.

As drafted, the following mandates would be triggered if enacted as part of NDAA:

  • Authorize the Secretary of the Department of Defense to enter into grant agreements or contracts to address groundwater or surface water contamination with a local water or wastewater agency holding jurisdiction over the contaminated site
  • Require immediate (1 year after enactment) inclusion of chemicals on Toxics Release Inventory for reporting emissions with a threshold of 100 pounds (within 5 years USEPA to determine if threshold reporting should be revised)
  • Require following assessment of chemicals that PFAS/PFOA are automatically listed on inventory beginning January 1 after any of the following dates:
    • Toxicity value established
    • New use rule or an addition to existing significant new use rule
    • Designated as an active chemical on inventory
  • Determine, within 2 years of date of enactment, whether PFAS/PFOA substances and classes of substances not listed on inventory should be listed
  • Require USEPA to determine and promulgate a primary drinking water standard and to consider other quality control, testing and monitoring procedures to ensure compliance with drinking water standards
  • Require issuance of lifetime health advisory
  • Require monitoring and detection for unregulated contaminants (PFAS/PFOAS substances and classes) for which a method for detection has been validated and for which are not subject to primary drinking water standard (provides that limitation of 30 unregulated contaminants for public agency monitoring does not apply)
  • Allows for waiver of monitoring mandates if insufficient laboratory capacity
  • Authorizes use of U.S. Environmental Protection Agency (USEPA) Drinking Water SRF resources to provide grants to address emerging drinking water contaminants with focus on PFAS/PFOA (25% of amounts available to support disadvantaged communities and systems serving under 25,000 persons) $100 million annually authorized from 2020-2024
  • Directs U.S. Geological Survey (USGS) to establish a performance for detection of PFAS/PFOA with focus on as sensitive as is feasible and practicable to ensure accurate sampling and testing
  • Mandates USGS to conduct nationwide survey to determine human exposure through drinking water
  • Establish a federal research program into the development of treatment methods for emerging contaminants
  • Require manufacturers of PFAS/PFOA to report data pursuant to TSCA related to manufacturing from the year 2006 forward
  • Require by June 22/2020 a final decision on TSCA significant new use rule
  • Require USEPA to issue interim guidance on the destruction and disposal of PFAS/PFOA targeting, and taking into account potential for releases, impacts on vulnerable populations near disposal sites and guidance on testing and monitoring of air, effluent, and soil near potential destruction or disposal sites for releases:
    • Firefighting retardant
    • Soil and biosolids
    • Textiles treated with chemical
    • Spent membranes, filters and other wastes from water treatment

House Subcommittee Examines Water Infrastructure Legislation

On June 13, the House Committee on Natural Resources Subcommittee on Water, Oceans, and Wildlife held a legislative hearing to review a series of bills dealing with wildlife and water infrastructure program.  Among the bills reviewed were three water measures to modernize water systems and improve water security in the West.  The three bills were:

  • H.R. 2473, Securing Access for the Central Valley and Enhancing (SAVE) Water Resources Act. – Rep. Josh Harder (D-CA). The legislation would help modernize California’s water infrastructure and security by supporting increased storage opportunities, helping farmers prepare for SGMA, spurring innovation in the water sector through incentivizing private sector investment, investing in water reuse and recycling, and supporting existing water infrastructure through the creation of new funding opportunities and financing programs.
  • H.R. 1162, Water Recycling Investment and Improvement Act. – Rep. Grace Napolitano (D-CA). The bill would make the U.S. Bureau of Reclamation’s Title XVI Program a permanent program and increase funding authorization for the program to $500 million from the current $50 million.  The Title XVI Program is currently scheduled to expires at the end of FY2019.  Additionally, the bill would fund water recycling and reuse projects in 17 western states.
  • H.R. 1976, PFAS Detection Act of 2019 —Rep. Dan Kildee (D-MI). The legislation would require the Director of the U.S. Geological Survey to perform a nationwide survey of the perfluorinated compounds (PFAS).

The hearing discussion highlighted the differences of opinion on California’s water infrastructure supply issues.  Ranking Member Tom McClintock (R-CA) expressed that the most economical, commonsense method to address the state’s water needs is to expand surface storage, so that water can be captured in wet years and utilized during dry years.  Chairman Jared Huffman (D-CA) stated his confusion over the call for increased surface storage projects because of their low design, construction and water-per-acre-foot costs.  Huffman explained that new surface water storage projects costs would not match previous projects’ budgets without multiple subsidies and he emphasized that if these projects were built, they would not be brought online and provide water resources as quickly as other types projects would.

A complete list of the bills reviewed at the hearing include:

  • H.R. 967 (Rep. Greg Gianforte), To authorize the construction of the Musselshell-Judith Rural Water System and study of the Dry-Redwater Regional Water Authority System in the States of Montana and North Dakota, and for other purposes. “Clean Water for Rural Communities Act.”
  • H.R. 1162 (Rep. Grace Napolitano), To establish a grant program for the funding of water recycling and reuse projects, and for other purposes. “Water Recycling Investment and Improvement Act.”
  • H.R. 1446 (Rep. Wm. Lacy Clay), To require the United States Postal Service to continue selling the Multinational Species Conservation Funds Semipostal Stamp until all remaining stamps are sold, and for other purposes.  “Multinational Species Conservation Funds Semipostal Stamp Reauthorization Act of 2019”
  • H.R. 1976 (Rep. Dan Kildee), To require the Director of the United States Geological Survey to perform a nationwide survey of perfluorinated compounds, and for other purposes. “PFAS Detection Act of 2019.”
  • H.R. 2473 (Rep. Josh Harder), To promote water supply reliability and improved water management for rural communities, the State of California, and the Nation, and for other purposes. “Securing Access for the central Valley and Enhancing (SAVE) Water Resources Act.”
  • H.R. 2685 (Rep. Jeff Van Drew), To amend the Wild Bird Conservation Act of 1992 to authorize appropriations for fiscal years 2020 through 2025, and for other purposes. “Wild Bird Conservation Act”
  • Discussion Draft H.R. ___ (Rep. Alan Lowenthal), “Migratory Bird Protection Act of 2019” 

House Begins Floor Votes On First Minibus Amendments

The House this week began debating and voting on amendments to the first minibus (H.R. 2740) that contains the Energy-Water FY2020 spending bill.  However, lawmakers only voted on fraction of the 200 plus amendments before recessing for the week.  Votes will resume when Members return to work on Monday.  A list of the amendments the House voted on so far can be accessed here.

It was also announced this week that there will be a second minibus (H.R. 3055) that will package the Commerce, Justice, Science, Agriculture, Rural Development, Food and Drug Administration, Interior-Environment, Military Construction, Veterans Affairs, Transportation, and Housing and Urban Development spending bills.  The spending bill of importance for water infrastructure is the Interior-Environment FY2020 bill, that includes Agency water infrastructure financing programs.

Senate Examines Prospect of Significant Wildfire Season

On June 13, the Senate Committee on Energy and Natural Resources held a hearing to “Examine the Outlook for Wildland Fire and Management Programs for 2019.” Chairman Lisa Murkowski (R-AK) opened the hearing by referencing a National Interagency Fire Center wildland fire forecast for “elevated wildfire activity” from June through September.  Highlighting this potential threat, Murkowski called on the Forest Service and the U.S. Department of the Interior to utilize its full suite of resources to expedite fire prevention and active forest management projects.  Ranking Member Joe Manchin (D-WV) stressed that climate change is having a tremendous impact on forest health.  He noted that the average length of fire season, in the western U.S., is now 86 days longer then it was between 1970 and 1986.



Testimony highlights from the hearing include:

Wade Crowfoot, Secretary, California Natural Resources Agency

  • The federal government owns 57 percent of California’s forestlands. (About 40 percent are privately owned, and 3 percent are owned by state government.)
  • California Governor Gavin Newsom issued an Emergency Proclamation directing CAL FIRE to immediately implement 35 emergency fire reduction projects. This directive waives certain environmental requirements and streamlines contracting requirements to expedite these projects.
  • California and the Forest Service are developing a shared stewardship agreement to provide a cooperative long-term strategy, including a landscape-level forest health plan and expansion of long-term stewardship contracts.
  • Crowfoot recommended that for 2019, the Forest Service increase the number of acres treated by vegetation management projects and prescribed burns to 500,000 acres per year in California.

Shawna Legarza, Director, Fire Aviation and Management, USDA Forest Service

  • The Forest Service has treated more than 1.05 million acres to reduce hazardous fuels to date in 2019 and plans to treat a total of 3.4 million acres nationally.
  • The Forest Service currently has more than $5.2 billion in deferred maintenance on infrastructure. This includes over 370,000 miles of roads, 13,400 bridges and trails, dams.  Current funding is inadequate to address these needs.

Additional testimony was provided by Jeff Rupert, Director, Office of Wildland Fire, U.S. Department of the Interior; and, Chris Maisch, Alaska State Forester, National Association of State Foresters.

Forest Service Seeks to Update Forest Management Rules

This week, the U.S. Forest Service released proposed changes designed to “modernize” environmental assessments/environmental impact statements to increase the pace and scale of forest and grassland management projects. The proposed rule and supporting documents may be viewed at: National Environmental Policy Act (NEPA) Compliance. 

The proposal would update existing categorical exclusions (CEs) and create a new set of CEs, a classification under the NEPA that excludes certain activities from analysis under an environmental assessment or environmental impact statement in special-use areas, road maintenance, and in places deemed at risk from disease and insect infestation. For example, CEs could be applied on forest restoration projects up to 7,300 acres. On those sites, up to 4,200 acres of timber harvesting would be permitted, according to the proposal.

There is a sixty-day public comment period on the proposed NEPA changes.  The Forest Service hopes to finalize the proposed changes by summer 2020.

Reaction to Proposed NEPA Changes is Swift and Deeply Divided

“The Forest Service is trying to create loopholes for itself that would entirely remove the public from most decisions affecting public lands.” (Southern Environmental Law Center)

“The administration is cutting red tape to save lives and protect the environment” Statement on Forest Service’s Proposed NEPA Revisions – House Committee on Natural Resources Ranking Member Rob Bishop (R-UT)

Oregon alone has over two million acres of thinning and prescribed fire treatment on forest lands that have gone through environmental reviews, the Forest Service should address these projects rather than “chase one of these ideological pipedreams of rolling back environmental laws while putting our communities at risk.”

Senate Committee Considers FEMA Nominee

The Senate Committee on Homeland Security and Governmental Affairs held a hearing to consider a series of nominations to federal agencies, including the nomination of Jeffrey Byard to be the Administrator of the Federal Emergency Management Agency (FEMA).  Byard testified that if confirmed, he would focus on fulfilling FEMA’s mission to help people before, during, and after disasters.  To do this, Byard explained that it means enhancing the nation’s preparedness and resilience to natural disasters through continuing implementing FEMA’s new Strategic Plan that includes building a culture of preparedness, readying the nation for catastrophic disasters, and reducing the complexity of FEMA.  Byard continued to say that if confirmed, he would implement Section 1234 of the Disaster Recovery Reform Act, which authorizes the National Public Infrastructure Pre-Disaster Mitigation Fund.  It would provide better infrastructure investment in mitigation prior to the disaster.

Regarding the complexity of FEMA’s programs, Byard testified that there needs to be an effort to reduce complexity to enable efficient rebuilding post disaster.  This means streamlining FEMA’s Public Assistance Program and shifting recovery from a dollar for dollar, project by project cost reimbursement process to a flexible and expedient cost estimate grant program.

The committee is scheduled to vote on Byard’s nomination on Wednesday, June 19.

The other nominations considered at the hearing were: Chad Wolf, to be Under Secretary for Strategy, Policy, and Plans, U.S. Department of Homeland Security, Troy Edgar, to be Chief Financial Officer, U.S. Department of Homeland Security, John Barger, to be a Governor U.S. Postal Service, and Chad Bungard, to be a Member, Merit Systems Protection Board.

New Legislation

S. 1874, A bill to amend title 40, United States Code, to require the Administrator of General Services to procure the most life-cycle cost effective and energy efficiency lighting products and to issue guidance on the efficiency, effectiveness, and economy of those products, and for other purposes. – Sen. Gary Peters (D-MI)

S. 1857, A bill to amend the National Energy Conservation Policy Act to improve Federal energy and water performance requirements for Federal buildings and establish a Federal Energy Management Program. – Sen. Lisa Murkowski (R-AK)

S. 1837, A bill to require the Administrator of the Environmental Protection Agency to establish a discretionary grant program for drinking water and wastewater infrastructure projects, and for other purposes. – Sen. Kristen Gillibrand (D-NY)

H.R. 3254, To require the Administrator of the Environmental Protection Agency to establish a discretionary grant program for drinking water and wastewater infrastructure projects, and for other purposes. – Rep. Antonio Delgado (D-NY)

S. 1811, A bill to make technical corrections to the America’s Water Infrastructure Act of 2018, and for other purposes. – Sen John Barrasso (R-WY)

H.R. 3226, To direct the Secretary of Defense to prohibit the use of firefighting foam containing perfuoroalkyl or polyfluoroalkyl substances, and for other purposes. – Rep. Andy Kim (D-NJ)

H.R. 3217, To require Congress to budget in advance for disasters and for other purposes. – Rep. Mark Walker (R-NC)

Reports and Regulation

Comment Letter – California Attorney General Xavier Becerra and Colorado and Arizona AG’s to the U.S. Environmental Protection Agency on proposed PFAS guidance.

NOAA – Coastal Inundation Dashboard – The National Oceanic and Atmospheric Administration issued a news release announcing availability of the Coastal Inundation Dashboard to assist entities and individuals in coastal areas anticipate coastal flooding. (6/7/19)

IRS Bars State SALT Cap Workarounds – The Internal Revenue Service halted state attempts to bypass the $10,000 cap on state and local tax deductions while also limiting deductions for charitable donations in which the taxpayer by the amount of any state or local tax credits they receive or expect to receive in return. 

Congress Next Week

June 18, 2019

Senate Committee on Energy and Natural Resources – Hearing on  Deferred Maintenance Needs and Potential Solutions on Federal Lands Administered by the Interior Department and the U.S. Forest Service.