[Senate Hearing 117-150]
[From the U.S. Government Publishing Office]
S. Hrg. 117-150
EVALUATING THE FEDERAL RESPONSE TO THE
PERSISTENCE AND IMPACTS OF PFAS CHEMI-
CALS ON OUR ENVIRONMENT
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HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
OCTOBER 20, 2021
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Printed for the use of the Committee on Environment and Public Works
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
46-729 PDF WASHINGTON : 2022
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
THOMAS R. CARPER, Delaware, Chairman
BENJAMIN L. CARDIN, Maryland SHELLEY MOORE CAPITO, West
BERNARD SANDERS, Vermont Virginia
SHELDON WHITEHOUSE, Rhode Island Ranking Member
JEFF MERKLEY, Oregon JAMES M. INHOFE, Oklahoma
EDWARD J. MARKEY, Massachusetts KEVIN CRAMER, North Dakota
TAMMY DUCKWORTH, Illinois CYNTHIA M. LUMMIS, Wyoming
DEBBIE STABENOW, Michigan RICHARD SHELBY, Alabama
MARK KELLY, Arizona JOHN BOOZMAN, Arkansas
ALEX PADILLA, California ROGER WICKER, Mississippi
DAN SULLIVAN, Alaska
JONI ERNST, Iowa
LINDSEY O. GRAHAM, South Carolina
Mary Frances Repko, Democratic Staff Director
Adam Tomlinson, Republican Staff Director
C O N T E N T S
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Page
OCTOBER 20, 2021
OPENING STATEMENTS
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware.. 1
Capito, Hon. Shelly Moore, U.S. Senator from the State of West
Virginia....................................................... 3
WITNESSES
Fox, Hon. Radhika, Assistant Administrator, Office of Water, U.S.
Environmental Protection Agency................................ 6
Prepared statement........................................... 8
Responses to additional questions from:
Senator Carper........................................... 19
Senator Merkley.......................................... 20
Senator Markey........................................... 21
Senator Capito........................................... 22
Senator Inhofe........................................... 33
Senator Shelby........................................... 34
ADDITIONAL MATERIAL
Testimony of New York Senator Kirsten Gillibrand................. 58
EVALUATING THE FEDERAL RESPONSE TO THE PERSISTENCE AND IMPACTS OF PFAS
CHEMICALS ON OUR ENVIRONMENT
WEDNESDAY, OCTOBER 20, 2021
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee, met, pursuant to notice, at 10:04 a.m. in
room 406, Dirksen Senate Office Building, Hon. Thomas R. Carper
(chairman of the committee) presiding.
Present: Senators Carper, Capito, Cardin, Whitehouse,
Duckworth, Stabenow, Kelly, Inhofe, Cramer, Lummis, Boozman,
Sullivan, Ernst.
OPENING STATEMENT OF HON. THOMAS R. CARPER,
U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Carper. Good morning, everyone. I am pleased to
call this hearing to order.
I am particularly pleased to welcome back to our hearing
room Assistant Administrator Radhika Fox. After your
confirmation hearing, we took a vote off the record, a secret
ballot, and voted that you have the coolest name of any nominee
to come before us is a long time.
[Laughter.]
Senator Carper. As you well know, Ms. Fox, we are all quite
interested to learn more about EPA's plan to tackle complicated
challenges associated with the presence of forever chemicals,
known as PFAS, in the environment and our lives. I very much
appreciate your leadership in pulling EPA's strategic roadmap
together to confront PFAS contamination head-on.
As a former Naval flight officer, I flew with the
confidence that firefighting crews on the ground would have the
backs of my aircrew and others in the event of an accident.
After all, the firefighting crews had a PFAS-containing foam
that could be dispensed and used to extinguish fires, in many
cases, quickly.
Like most Americans, I welcomed many of the products
created through modern chemistry, from nonstick pans and
waterproof jackets to stain-proof furniture fabric and even
dental floss. My guess is that every one of us in the room have
maybe used one of these products even today, even today. It is
some amazing stuff. It can resist sticky and staining food
while smothering flames and lasting, seemingly, forever.
But that is not all these chemicals can do. Because they
are so persistent, hence the name ``forever chemicals,'' the
lion's share of these substances do not break down in the
environment. Instead, what they do is accumulate. Where do they
accumulate? Well, they accumulate in plants, in animals, and
ultimately, in our bodies, and in the bodies of our children
and our grandchildren.
In fact, according to the Center for Disease Control, 97
percent of us carry PFAS inside of our bodies, and several of
these forever chemicals have proven to be toxic, causing among
other maladies liver damage, thyroid disease, fertility
problems, immune issues, and even cancer.
There is no question that these chemicals are widely used,
and understandably so. Since the 1940's, it is estimated that
more than 9,000 PFAS chemicals have been manufactured and used
in a variety of industries around the world. Creative chemists
are finding ever more uses for these chemicals, from enabling
lighter-weight materials for our electric vehicles, better
components for the batteries of the future, to high-efficiency
methods for cooling huge and energy-hungry servers that keep us
connected.
Embracing the miracle of modern chemistry comes with a
price, though, and a grave responsibility. We have to keep the
lessons of Parkersburg, West Virginia, Hoosick Falls, New York,
and Cape Fear in North Carolina fresh in our minds as we in
government, in business, and in communities across the Country
plot our course going forward.
As has so often been the case, many times we embrace the
miracles of modern chemistry before we fully understand the
complete consequences of doing so. Remember chemicals like
PCBs, DDT, and dioxins? Sadly, with PFAS, as with many of its
predecessors, we have invested billions of dollars to develop
the chemistry and not enough in anticipating and preventing
their adverse effects. So, that leaves us with a grave
predicament on our hands and an extraordinarily complex and
expensive process to deal with.
That brings us to the topic of our hearing today. We are
extremely grateful to you, Ms. Fox, and all of the hardworking
career staff at EPA for investing the time to thoughtfully and
strategically address our daunting PFAS challenges, not only
the legacy of past contamination in our land and our waters and
our bodies, but also the future threats posed by our ongoing
and future use of these compounds.
We have heard from the witnesses who participated in our
hearing on PFAS contamination earlier this year Americans
deserve a robust, national strategy when it comes to addressing
this pervasive public health threat.
While I am encouraged by EPA's issuance of a new PFAS
roadmap, the key to meaningful change lies in its timely,
complete implementation. This will no doubt be a heavy lift,
especially for EPA, but also for the rest of us.
Ranking Member Capito, sitting here to my right, I just
want to say that I look forward to working with you on this
challenge, along with all our other EPW colleagues and our
Senate colleagues who are not members of this committee, and
with other stakeholders in order to support and supplement
EPA's work as needed to ensure that we avoid the mistakes and
heartbreak we have witnessed with novel compounds too often in
the past.
With that, I am going to recognize our Ranking Member,
Senator Capito, for her opening statement. Before I do, let me
just note that Senator Capito has, unfortunately, had a great
deal of experience in my native State of West Virginia with
PFAS pollution in the mountain State. I want to thank her for
her leadership on this important issue, this important matter,
and to acknowledge the suffering of her constituents and far
too many families and far too many communities across our
Country. So, thank you, and we look forward to working with you
in getting more good stuff done. Thank you.
Senator Capito.
OPENING STATEMENT OF HON. SHELLEY MOORE CAPITO,
U.S. SENATOR FROM THE STATE OF WEST VIRGINIA
Senator Capito. Thank you. Thank you, Chairman Carper, for
calling this hearing today, and thank you, Assistant
Administrator Fox, for being here to discuss, as the Chairman
said, EPA's efforts to address PFAS, including the new PFAS
Strategic Roadmap that was just released earlier in the week.
Before I turn to PFAS, I would like to take a moment to
thank you for all of the agency's efforts in helping us to deal
with the lead issues that were discovered in Clarksburg, West
Virginia. While there remain some process questions about how
we got to where we are, I appreciate EPA's close coordination
with the State of West Virginia and the city of Clarksburg to
ensure that the citizens of Clarksburg have safe drinking
water, so that you for that.
As you know, addressing PFAS contamination is extremely
important to me and has been one of my highest priorities as
EPW Ranking Member. EPA has been working hard to understand and
address PFAS for many years now, and across multiple
administrations. I would note that there is increased interest
and increased awareness among our membership here in the Senate
of the pervasiveness of PFAS and in what forms.
So, while I applaud all the EPA for the progress, I think
much work remains.
Of utmost importance to me is that EPA expeditiously sets a
drinking water standard for two specific PFAS: PFOS and PFOA.
This has been a longstanding priority of mine through the past
administration and this one, and we have talked about it on the
phone, and I am pleased that the Biden Administration has
stated it will complete these standards in the Roadmap under a
process initiated by the Trump Administration.
I also appreciated that the White House, and EPA
specifically, responded quickly to my February 17th letter by
lifting the Biden Administration's freeze on promulgating those
regulations. It is vital that Americans have safe drinking
water, and these regulations will help to ensure that. I look
forward to hearing an update.
I do have some issues with the roadmap because it touches
on a whole host of EPA offices and statutory authorities, and
often, the details, particularly on timing within the document
are vague and several years down the line. The American people
deserve to have the transparency into how EPA plans to address
these regulatory matters, when and how the science will be to
leading to those conclusions and outcomes.
I look forward to hearing detailed updates on other
potential regulatory actions and EPA's PFAS research activities
in your office and others which I know are necessary to form
the basis of appropriate Federal action.
Back in April, I wrote to EPA requesting an update on the
agency's research initiatives. I was a bit disappointed that
EPA's reply did not really provide any of the specificity of
the information that I had requested. As I had stated in my
April letter, many of the regulatory and enforcement actions
the Federal Government and States may pursue hinge on continued
research. Quite simply, we need a more in-depth understanding
of the chemistry and environmental and health challenges posed
by this broad class of compounds.
The Roadmap released only on Monday fails to describe what
new research or technological breakthroughs are triggering or
modifying EPA's approach to addressing PFAS.
As EPA stated, ``Robust research is a prerequisite to
improving EPA's understanding of the risks associated with PFAS
and helping the agency make more informed decisions to protect
public health.'' I assure you, Administrator Fox, I hope that
you are prepared to share the current status and current
expected completion dates for EPA's incomplete research and
regulatory efforts today and why, after a history of missed
internal deadlines on this issue, keeping in mind that you
probably weren't there when they were missed, we would expect
something different. It is vital that EPA ensures that science
and not politics is driving the regulatory decisions.
My colleagues and I cannot determine that this is the case
with this Administration without improved transparency and the
latest information from EPA detailing what the agency knows,
what it does not know, and how progress is being made.
I have helped ensure that EPA has the necessary authorities
to fill any information gaps related to PFAs. PFAS legislation
that I drafted, the PFAS Release Disclosure and Protection Act,
was approved by this committee and ultimately signed into law
in the NDAA Fiscal Year 2020. Some of these authorities are
listed in the PFAS Strategic Roadmap.
One of the reporting requirements in my legislation was
that companies comply with a one-time reporting event for PFAS
manufactured since January 1, 2011. EPA has proposed a rule to
implement that requirement this summer, and I thank you for
that. I hope the information that the agency will obtain from
this reporting and others like TRI and TSCA Section 8 will
better inform the agency as it determines how to best address
the challenges of PFAS contamination.
As I believe we all know, and the Chairman stated this as
well, PFAS is present all over this Country and all over the
world, with background levels of contamination from a multitude
of sources. This is a very complex issue. But the actual
threats to human health and the immediate environment can be
highly localized. This is exactly why a deliberative, science-
based approach to testing and remediation is necessary.
Last, with plenty of misinformation out there, appropriate
risk communication from the Federal Government is critical, we
talked about this on the phone, for helping our constituents
understand and address this PFAS pollution.
I look forward to hearing updates on each of these
important issues, and I thank you again for coming.
Senator Carper. Thanks, Senator Capito.
Senator Capito knows, and our colleagues know, Senator
Inhofe, who used to be the Chairman of this committee, and is
still a valued member of this committee, has spent a lot of his
life in airplanes, flying all over this Country and around the
world. I mentioned earlier, I don't know if you were here, Jim,
when I mentioned this, but during my time as a Naval flight
officer, I was stationed at Moffett Field, California. When we
were in Southeast Asia, we were in Moffett Field, which is
close to Mountain View, which is south of San Francisco.
One day, driving into work to join my crew and go for a
flight, you could see black smoke coming up from, as I was
driving down Route 101, and I got closer and closer. I got to
the main gate to go in, and I said, what is going on? What has
happened here? As it turned out, we had parallel runways, and
the traffic controller was bringing in two airplanes, one a big
NASA plane, and one smaller Navy P3 aircraft. Instead of
keeping them on separate parallel runways, put them both on the
same runway, and the larger NASA plane literally landed on top
of the Navy P3.
I think we lost 15 lives that morning, and within minutes,
the fire rescue troops were out there, spraying down the planes
with firefighting foam, trying to save as many lives as they
can.
Fast forward to about, oh gosh, eight or 9 years ago, I am
in Delaware, driving to Southern Delaware, coming down Route 1
just past Dover, and going right by Dover Air Force Base. Just
as I get south of Dover Air Force Base, I see black smoke
coming up, just off of State Route 1. As it turn out, A C5, a
huge, maybe the largest airplane in the world, we have C5s and
C17s at Dover, a C5 had loaded up that morning to fly around
the world, go over the top of the world to go to Afghanistan, I
believe.
So they had a full bag of fuel, full load of cargo, and
they got through clearance, took off, and as they climbed out,
the engineer, they have four engines in the plane, and they got
an engine light, which meant a warning on one of the engines,
as Jim knows. When that happens, you turn off that engine.
The engineer turned off the wrong engine, so a plane that
was supposed to fly across the planet and take all that cargo
ended up not on four engines, but two. They did their best as
they climbed out to try to get around and come in and land the
airplane, and couldn't make it, so the plane went in just south
of the Dover Air Force Base, just south of the main runway,
about a mile.
The firefighting crews rushed out and they sprayed down the
airplane to try to save as many lives as they can. Happy
ending, everybody lived. Amazing ending. That is the good news.
The bad news, there were four communities around the base that
now have polluted water because of the firefighting foams. It
is something that was designed to save lives. It can also put
lives at risk.
I just wanted to share that this is a serious matter, and
one that deserves the kind of attention, I think, that you and
your team have provided. I can assure you that this woman right
here will make sure that, given her interests from West
Virginia, my native State, that we are going to give it a lot
of time and attention. The time for action is here. The time
for the words, we need action, and we look forward to working
with you. You are recognized, please.
Senator Inhofe. Whatever happened to the guy that turned
off the wrong engine?
Senator Carper. I think he had suffered real psychiatric
problems. Imagine living with that for the rest of your life.
It is a very, very sad story all around. Radhika Fox, welcome.
STATEMENT OF HON. RADHIKA FOX, ASSISTANT ADMINISTRATOR, OFFICE
OF WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY
Ms. Fox. Thanks. Good morning, Chairman Carper and Ranking
Member Capito and members of the committee. I am Radhika Fox,
Assistant Administrator for Water at the EPA, as well as the
co-chair for EPA's Council on PFAS.
Your opening remarks really illustrated to me how much
bipartisan support there is to make progress on PFAS. So I
wanted to begin by recognizing the leadership of this committee
on PFAS. Chairman Carper, you have pushed to improve our
understanding of the prevalence and impact of these chemicals
on our community. Ranking Member Capito, your legislative
efforts have helped EPA and many other agencies take important
steps.
The last time I testified in front of this committee, I
talked about the Flint water crisis, and I shared my belief
that no community in this Country should suffer from
environmental contamination. I remain committed to ensuring
that all people, regardless of their income, their zip code, or
the color of their skin, have environmental protections in
place and that their communities are safe.
Today, we will discuss the complex and very serious
challenge of PFAS and EPA's bold strategy to protect public
health and the environment. PFAS have been manufactured and
used in various applications since the 1940's, and they are
still in use today. As a result, PFAS can be found nearly
everywhere: in our air, in our land, in our water, in our
wildlife, in our own bodies. A growing body of scientific
evidence shows us that PFAS exposure can adversely impact human
and ecological health.
That is why President Biden made bold commitments to
protect communities from PFAS contamination, and the President
appointed someone with first-hand experience to lead the EPA.
Under Administrator Regan's leadership, EPA has hit the ground
running as we have made significant progress in just 9 months.
But what I am really most excited about is to share our PFAS
strategic roadmap, which was driven by the career experts
across the EPA. We released it on Monday, and I look forward to
today's discussion about it.
The roadmap builds on the agency's 2019 action plan while
committing to bolder and new policies to safeguard public
health, protect the environment, and to hold polluters
accountable. The human health and ecological risks posed by
PFAS demand that the EPA attack the problem on multiple fronts
and that we leverage multiple statutory authorities on behalf
of the American people. The roadmap plays out a whole-of-agency
approach to accelerate progress, and we commit, we have set
timelines by which the agency will take specific actions.
For the first time, EPA now has a comprehensive approach to
addressing PFAS, and it is grounded in three central
directives: research, restrict, and remediate. Under this plan,
EPA will invest in research to better understand PFAS
exposures, its impacts to human health and ecosystems, and the
most effective interventions. We are going to continue to build
the scientific foundation to approach PFAS as groups, because
we believe that over time, this can help us accelerate our
regulatory work.
We will also pursue an ambitious agenda to restrict PFAS
from entering air, land, and water in the first place. That is
the strongest, most foundational way we can protect communities
from these forever chemicals.
We are going to broaden and accelerate our efforts to
remediate PFAS contamination. When EPA sees that there is
contamination, we will push for cleanup, and we will hold
polluters accountable.
Research, restrict, remediate: these are the central
directives that will guide EPA's work on forever chemicals.
I also want to note that the agency's work will be
prioritizing and ensuring that disadvantaged communities have
equitable access to solutions, whether they are urban
communities or rural communities. We have to center this work
in equity.
Each step and action identified in the roadmap is a bold
step forward, but what is so exciting is the cumulative impact
that these actions will have. They buildupon one another, and
they will lead to enduring protections for communities across
America.
Senators, please also know that there is a lot we still
don't know about PFAS, and so EPA is going to be in a
continuous mode of learning. As EPA learns more, we will do
more.
Finally, EPA wants to partner. We want to partner for
progress with this committee, with impacted communities around
the Country, with all interested stakeholders.
I want to thank you for the opportunity to testify today,
and I really look forward to today's discussion.
[The prepared statement of Ms. Fox follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Questions from Senator Carper to Assistant Administrator Radhika Fox
Question 1. The PFAS Roadmap anticipates the development of
proposed Effluent Limitation Guidelines (ELGs) for two industry
categories by the summer of 2023 and 2024 but did not include
deadlines for the issuance of final ELGs. Further, the Roadmap
anticipates a decision about whether to move forward with ELGs
for three categories--electrical components, textiles, and
landfills--by the end of 2022 based on detailed studies, and
anticipates completing the data reviews for other categories
which include leather tanning and finishing, plastics molding
and forming, and paint formulation by the winter of 2023. a.
Please provide addition detail regarding the process the agency
will undertake to develop ELGs, including any deadlines. Does
EPA need additional resources to accelerate the development of
ELGs? If so, please describe.
Response. Effluent Limitations Guidelines (ELGs) are a
powerful tool to limit pollutants from industrial sources from
entering the nation's waters. ELGs establish national
technology-based regulatory limits on the level of specified
pollutants in wastewater discharged into surface waters and
into municipal sewage treatment facilities. EPA has been
conducting a PFAS multi-industry study to inform the extent and
nature of PFAS discharges. Based on this study, EPA is taking a
proactive approach to restrict PFAS discharges from multiple
industrial categories. EPA plans to make significant progress
in its ELG regulatory work by the end of 2024. EPA has
established timelines for action--whether it is data collection
or rulemaking--on the nine industrial categories in the
proposed PFAS Action Act of 2021, as well as an additional
industrial category: landfills.
EPA's ELG work is industry-specific and highly dependent on
data necessary to characterize the facilities that make up the
industry, the type and amount of pollutants being discharged,
the treatment technologies available to reduce or eliminate
pollutants, and the economic impact that requiring removal of
pollutants consistent with the available technologies would
have on the industry as a whole. For the industrial categories
where EPA has announced it is revising ELGs due to PFAS--
Organic Chemical Manufacturing and Metal Finishing/
Electroplating--EPA is moving ahead quickly to acquire the data
needed to fully understand the profile of the industry; the
PFAS compounds made, used, and discharged; and the extent of
those discharges.
The schedules for final rulemakings for these two
categories are dependent on what we learn about these
industrial categories through EPA's data collection and
analysis. This limits EPA's ability to set more precise
timelines until such data are gathered and fully analyzed.
Through the rulemaking and the additional industrial category
studies identified under the PFAS Roadmap, EPA intends to make
significant progress toward closing these data gaps and then
using the resulting data to make regulatory decisions.
EPA published its Preliminary Effluent Guidelines Program
Plan 15 in the Federal Register on September 14, 2021. EPA is
currently reviewing public comments on the proposed plan in
anticipation of publishing a final Program Plan 15 in 2022 that
will further describe EPA's plans related to PFAS.
EPA will require, and anticipates allocating, additional
resources to complete the ELG actions included in the PFAS
Roadmap. The ELG program at EPA has declined in both staffing
and extramural resources by almost 40 percent over the last 10
years.
Question 2. We appreciate the agency's efforts to
accelerate the development of a drinking water standard for
PFOA and PFOS. What steps does EPA plan to take to establish
limits for other PFAS chemicals in drinking water?
Response. In addition to EPA's commitment to issue a
proposed National Primary Drinking Water Regulation (NPDWR) for
PFOA and PFOS in Fall 2022, and a final rule by Fall 2023, the
Agency is also evaluating additional PFAS and considering
regulatory actions to address groups of PFAS. Going forward,
EPA will continue to analyze whether NPDWR revisions can
improve public health protection for additional PFAS in
drinking water.
In addition to EPA's commitment to move forward on these
regulatory actions, EPA's PFAS Roadmap also commits EPA, going
forward, to develop health advisories as the Agency completes
toxicity assessments for additional PFAS.
Question 3. According to recent analysis, thousands of
industrial furnaces, incinerators or cement kilns across the
country could unsuspectingly be burning the Pentagon's PFAS
waste after it is blended into the fuel that is used to power
their operations. According to DOD records, as much of 25
percent of DOD's legacy Aqueous Film Forming Foam (AFFF) is
being sent to fuel blending facilities through this process
instead of directly to a hazardous waste incinerator. What
steps is EPA taking or planning to take to limit PFAS
incineration via blended fuel?
Response. EPA would defer to the Department of Defense to
characterize the current status of DOD's disposal of legacy
AFFF.
To meet a requirement of the Fiscal Year 2020 National
Defense Authorization Act (NDAA), EPA published interim
guidance on destroying and disposing of PFAS and certain
identified non-consumer PFAS-containing materials in December
2020 for public comment. It identifies three technologies that
are commercially available to either destroy or dispose of PFAS
and PFAS-containing materials and outlines the significant
uncertainties and information gaps that exist concerning the
technologies' ability to destroy or dispose of PFAS while
minimizing the migration of PFAS to the environment. The
guidance also highlights research that is underway and planned
to address some of these information gaps. Furthermore, the
interim guidance identifies existing EPA tools, methods, and
approaches to characterize and assess the risks to
disproportionately impacted people of color and low-income
communities living near likely PFAS destruction or disposal
sites.
In the PFAS Roadmap, EPA committed to issuing updated
guidance no later than the NDAA statutory deadline of December
2023. EPA's updated guidance will address the public comments
and reflect newly published research results. Since the
publication of the interim guidance, EPA and other agencies
have been conducting relevant research on destruction and
disposal technologies. EPA anticipates that additional research
data will become available starting in 2022. EPA will update
the guidance when sufficient useful information is available
and no later than the statutory deadline.
Question 4. The latest agency guidance on PFAS disposal
indicates that interim storage is currently the best option,
given concerns related to disposal methods such as landfilling
and incineration. How is EPA communicating that advice to
industries and other entities that use PFAS? Is EPA planning to
take steps to limit incineration while it continues its PFAS
destruction research?
Response. By publishing the interim guidance, EPA took a
significant step toward educating industry and the public on
available destruction and disposal technologies as well as
their significant uncertainties and information gaps. As noted,
EPA's interim guidance highlighted that while not a destruction
or disposal method, interim storage may be an option if the
immediate destruction or disposal of PFAS and PFAS-containing
materials is not imperative. In general, interim storage could
be utilized until research reduces the uncertainties associated
with other options. However, EPA understands that interim
storage may not be an option for some entities due to
limitations.
EPA's PFAS Roadmap includes specific commitments to issue
updated destruction and disposal guidance; to build the
technical foundation to address PFAS air emissions; to develop
and validate methods to detect and measure PFAS in the
environment; and to evaluate and develop technologies for
reducing PFAS in the environment.
Questions from Senator Merkley to Assistant Administrator Radhika Fox
Question 1. The PFAS Roadmap discusses EPA's requirement to
update its guidance on destroying and disposing PFAS waste per
the 2020 NDAA. It also requires that EPA revise this guidance
every 3 years. In December 20, EPA published it first interim
guidance on PFAS disposal. The guidance notes that three
technologies that are currently available to destroy or dispose
of PFAS. However, the PFAS Roadmap also points out that [quote]
``significant uncertainties and information gaps exist
concerning the technologies' ability to destroy or dispose of
PFAS while minimizing the migration of PFAS to the
environment.'' Ms. Fox, what steps will EPA take between now
and December 2023 to ensure that communities surrounding
incinerators are not harmed by ongoing PFAS incineration? Can
you explain why EPA decided not to implement a rulemaking to
ensure incineration of toxic PFAS waste is banned when we know
polluters like the Department of Defense have been burning
PFAS-containing waste, including firefighting foam? Please put
your second question here, if you have one, and continue with
this format for additional questions. Thank you.
Response. By publishing the interim guidance, EPA took a
significant step toward educating industry and the public on
available destruction and disposal technologies as well as
their significant uncertainties and information gaps. As noted,
EPA's interim guidance highlighted that while not a destruction
or disposal method, interim storage may be an option if the
immediate destruction or disposal of PFAS and PFAS-containing
materials is not imperative. In general, interim storage could
be utilized until research reduces the uncertainties associated
with other options.
EPA's PFAS Roadmap includes specific commitments to issue
updated destruction and disposal guidance; to build the
technical foundation to address PFAS air emissions; to develop
and validate methods to detect and measure PFAS in the
environment; and to evaluate and develop technologies for
reducing PFAS in the environment.
Question 2. PFAS has been detected at airports and military
sites in my home State of Oregon. The suspected source of this
PFAS if firefighting foam. Ms. Fox, as you know, firefighting
foam made with PFAS is among the major sources of PFAS
pollution. On Monday, the White House released a press released
on PFAS action that states that the ``FAA and DOD are working
to find a PFAS-free firefighting foam alternative.'' Ms. Fox,
is the EPA working with these agencies to find an alternative
to PFAS-free fighting foam? If so, can you please provide an
update on this work?
Response. Congress has provided DOD and FAA with statutory
directives related to developing PFAS-free firefighting foam.
EPA is working with these agencies to identify ways for EPA to
support their efforts, including through coordination of
ongoing research and development activities.
Question 3. As the Senate sponsor of the Break Free from
Plastic Pollution Act, I am greatly concerned about the
chemicals present in plastic products--and how they impact
public health and the environment. In March 21, EPA released a
study which found PFAS in some fluorinated containers of high-
density polyethylene. According to E&E News this material is
``widely used in food packaging because it can easily seal out
moisture and other temperature changes. The packaging is
generally used during the manufacturing process to hold large
quantities of ingredients like oils or flavorings.'' Since
then, the Food and Drug Administration has warned industry that
only certain fluorinated polyethylene containers are approved
for contact with food. Ms. Fox, can you elaborate on these EPA
findings? What steps is EPA taking to work with FDA to address
the use of these plastics containers?
Response. EPA is aware that many companies are using
fluorinated High Density Polyethylene (HDPE) containers to
store and distribute pesticides and other products. EPA has
been working with the Food and Drug Administration, the U.S.
Department of Agriculture, and industry and trade organizations
to raise awareness of this emerging issue and discuss
expectations of product stewardship. For example, EPA has
corresponded with the Ag Container Recycling Council, the
American Chemistry Council, Crop Life America, the Household &
Commercial Products Association, and the National Pest
Management Association. In addition, on January 14, 2021, EPA
issued a TSCA subpoena to a company that fluorinates the
containers to learn more about the fluorination process used on
the HDPE containers. On March 5, 2021, EPA also released
testing data showing PFAS contamination from the fluorinated
HDPE containers used to store and transport a mosquito control
pesticide product. While EPA is still early in its
investigation, the agency will use all available regulatory and
non-regulatory tools within EPA's authority to determine the
scope of this issue and its potential impact on human health
and the environment and will continue to coordinate with other
agencies and organizations on matters outside EPA's
jurisdiction.
Questions from Senator Markey to Assistant Administrator Radhika Fox
Question 1. In the Environmental Protection Agency's (EPA)
PFAS Action Plan, which was issued in 2019, the agency stated
that it would partner with Environmental Council of the States
to build an interactive, publicly accessible map of potential
PFAS sources and occurrence. The EPA anticipated that the map
would be completed and implemented in 2019. What is the status
of this endeavor?
Response. As highlighted in EPA's PFAS Roadmap, the Agency
remains committed to educating the public about the risks of
PFAS. EPA continues work to develop different approaches for
identifying and mapping potential PFAS sources and occurrence.
In the Biden-Harris Administration, EPA has renewed its
partnership with ECOS and continues to discuss opportunities--
both within EPA and with ECOS--to increase available resources
on PFAS contamination. EPA has recently publicly released data
regarding PFAS detections and possible sources through its FOIA
Online data base.
Question 2. Given the Food and Drug Administration's
detection of PFAS in our food supply, will the EPA consider
additional interagency plans for PFAS remediation?
Response. Coordination with FDA and other agencies will be
critical to combating PFAS pollution. EPA will work with other
Federal agencies through the newly formed Interagency Policy
Committee on PFAS, which is led by the White House Council on
Environmental Quality, to coordinate and help develop new
policy strategies to support research, remediation, and removal
of PFAS in communities across the country.
Question 3. The EPA has identified more than 120,000
facilities across the country that may be handling PFAS,
including about 2,500 in Massachusetts. What is the EPA doing
to identify if PFAS is present at these sites and how will the
EPA make the American public aware of these potentially harmful
facilities?
Response. Harmful PFAS are an urgent public health and
environmental issue facing communities across the United
States, and EPA's PFAS Roadmap seeks to broaden and accelerate
the cleanup of PFAS contamination to protect human health and
ecological systems. Many communities and ecosystems are
continuously exposed to PFAS in soil, surface water,
groundwater, and air. Areas can be exposed due to their
proximity to industrial sites, airports, military bases, land
where biosolids containing PFAS have been applied, and other
sites where PFAS have been produced or used and disposed of for
specific and repeated purposes.
When EPA becomes aware of a situation that poses a serious
threat to human health or the environment, the Agency will take
appropriate action. For other sites where contamination may
have occurred, the presence of certain PFAS in these
environments necessitates coordinated action to understand what
specific PFAS have been released, locations where they are
found, where they may be transported through air, soil, and
water in the future, and what remediation is necessary. EPA
will seek to hold polluters and other responsible parties
accountable for their actions, ensuring that they assume
responsibility for remediation efforts and prevent any future
releases.
With respect to the facility numbers included in your
question, the total number of facilities identified by these
data sets includes some facilities where PFAS has been detected
by states and other entities, but also includes many facilities
that are in one of the data sets solely because they are part
of an industry category that generally handles PFAS. Such
facilities may be handling PFAS because of their industrial
categorization, but EPA does not have specific evidence of
potential contamination for many of these facilities.
Question 4. Will the EPA consider strengthening regulatory
or compliance requirements beyond the establishment of a
voluntary stewardship program to mandate that all industrial
sources of PFAS reduce their emissions into the environment?
Response. Yes. EPA will use its authorities to impose
appropriate limitations on the introduction of new unsafe PFAS
into commerce and will, as appropriate, use all available
regulatory and permitting authorities to limit emissions and
discharges from industrial facilities. However, reducing PFAS
exposure through regulatory means can take time to develop,
finalize, and implement. Moreover, current PFAS regulatory
efforts do not extend to all of the PFAS currently in commerce
in the United States. As a companion to other efforts described
in the Roadmap, EPA will establish a voluntary stewardship
program challenging industry to reduce overall releases of PFAS
into the environment. The program, which will not supplant
industry's regulatory or compliance requirements, will call on
industry to go beyond those requirements by reporting all PFAS
releases in order to establish a baseline and then continuing
to report to measure progress in reducing releases over time.
EPA will validate industry efforts to meet reduction targets
and timelines.
Question 5. Regarding the issue of PFAS in firefighting
foams used in aviation, will the EPA issue a comprehensive list
of products that may contain PFAS? Concurrently, will the EPA
issue performance standards for PFAS-free alternatives to
enable a rapid transition away from such products?
Response. As part of the PFAS Roadmap, EPA is not currently
planning to develop a comprehensive list of PFAS-containing
products or performance standards for PFAS-free products.
However, EPA looks forward to engaging regularly with
communities experiencing PFAS contamination, co-regulators,
industry, environmental groups, community leaders, and other
stakeholders, to clearly communicate its actions and to stay
abreast of evolving needs.
Questions from Senator Capito to Assistant Administrator Radhika Fox
Question 1. In response to a question from Senator Carper,
you stated ``as PFAS legislation moves, we would love to be in
discussion with Congress about additional authorities,
statutory authorities that might enable EPA to go faster.''
What additional authorities does EPA need, that it does not
already have, to address PFAS?
Response. My remarks to Senator Carper on this point were
meant to highlight that there are areas in which congressional
action can be a much faster approach than an EPA rulemaking,
such as the rulemaking processes identified in the PFAS Roadmap
under the Comprehensive Environmental Response, Compensation,
and Liability Act, the Safe Drinking Water Act, or the Clean
Air Act. EPA looks forward to opportunities to share technical
assistance with you and with Chairman Carper on how legislation
could further buildupon the commitments included in the PFAS
Roadmap.
Question 2. Various bills proposed in Congress have defined
PFAS as ``a perfluoroalkyl or polyfluoroalkyl substance with at
least one fully fluorinated carbon atom.'' This definition has
been described as too broad because it captures products that
do not include PFAS, such as lithium ion batteries. In EPA's
proposed rule for TSCA Section 8(a)(7) Reporting and
Recordkeeping Requirements for PFAS and the Draft Fifth
Contaminant Candidate List (CCL) 5, EPA uses a structural
definition of PFAS that ``includes per-and polyfluorinated
substances that structurally contain the unit R-(CF2)-
C(F)(R')R.. Both the CF2 and CF moieties are saturated carbons
and none of the R groups (R, R' or R.) can be hydrogen.'' Can
you explain the difference between the definition used in past
legislation and the structural definition EPA is using and why
EPA prefers the structural definition?
Response. The definition in various legislative proposals
you reference would define PFAS using the recently revised
definition provided in the OECD document, ``Reconciling
Terminology of the Universe of Per-and Polyfluoroalkyl
Substances: Recommendations and Practical Guidance,'' and is
broader than the definition cited, for example, in EPA's TSCA
8(a)(7) proposed rule. OECD has explained that the definition
does not inform whether a substance is potentially harmful,
only that it shares the same common trait for having one fully
fluorinated carbon atom.
The EPA working definition you highlight has been used by
EPA's Office of Pollution Prevention and Toxics (OPPT), which
administers the Toxic Substances Control Act (TSCA). This
working definition identifies chemicals with at least two
adjacent carbon atoms, where one carbon is fully fluorinated
and the other is at least partially fluorinated. The EPA/OPPT
working definition is focused on PFAS likely to be present in
the environment, especially water, thereby focusing data
collection on PFAS with greater potential for exposures to
people/environment and by extension more potential to present
risks. This working definition provides focus on PFAS of
concern based on their persistence and potential for presence
in the environment and human exposure.
For example, chemicals with (-CF2-) that are not (-CF3) are
expected to degrade in the environment and most substances with
only one terminal carbon (-CF3) are expected to degrade to
trifluoroacetic acid, which is a well-studied substance.
In the context of the TSCA 8(a)(7) rule, EPA is evaluating
the potential impact of the OECD definition on the scope of the
rule.
Question 3. Is EPA working on a uniform Agency-wide
definition of PFAS?
Response. At this time, EPA is not developing an Agency-
wide definition of PFAS.
Question 4. If EPA does not develop an Agency-wide
definition of PFAS, how will EPA decide which definition to use
in a given Agency action?
Response. The risks posed by PFAS demand that EPA attack
the problem on multiple fronts at the same time, and EPA must
leverage the full range of statutory authorities to confront
the human health and ecological risks of PFAS. As EPA takes
action on PFAS under a particular statutory authority, EPA will
evaluate the best-available scientific information as well as
the specific statutory context when determining the scope of
its action.
Question 5. Now that the PFAS Strategic Roadmap has been
released, can you explain what the role of the EPA Council on
PFAS will be moving forward and the specific processes the
Council will utilize to share data and information across the
Agency, with Congress, and with the public?
Response. EPA's Council on PFAS was established by
Administrator Regan in April 2021 to collaborate on cross-
cutting strategies; advance new science; develop coordinated
policies, regulations, and communications; and engage with
affected states, tribes, communities and stakeholders. Among
the Council's primary initial responsibilities was to develop a
multi-year strategy to deliver critical public health
protections to the American public, which EPA released on
October 18 as the PFAS Strategic Roadmap. Now that the Roadmap
has been released, the PFAS Council will continue its
collaborative, cross-agency work and will continue to tackle
the additional areas outlined in the Administrator's April
memo, such as to:
LContinue close interagency coordination on
regional specific and cross-media issues to assist states,
tribes and local communities faced with significant and complex
PFAS challenges;
LWork with all national program offices and
regions to maximize the impact of the EPA's funding and
financing programs to support cleanup of PFAS pollution,
particularly in underserved communities; and to
LExpand engagement opportunities with Federal,
state, and tribal partners to ensure consistent communications,
exchange information and identify collaborative solutions.
Question 6. In response to my February 17, 2021 letter to
White House Chief of Staff Ronald Klain, EPA announced its
intent to move forward with the ``Final Regulatory
Determinations for the Fourth Drinking Water Contaminant
Candidate List,'' in which EPA finalized its determination to
regulate both PFOS and PFOA under the Safe Drinking Water Act.
This action by EPA was published in the Federal Register on
March 3, 2021. What is the status of this regulatory process?
Response. EPA is moving forward to propose national primary
drinking water regulations for PFOA and PFOS under the Safe
Drinking Water Act. This December, EPA will begin consultation
with EPA's Science Advisory Board on the science behind the
impacts of PFOA and PFOS in drinking water. EPA expects the SAB
will provide advice to EPA in late Spring 2022, followed by EPA
proposing a National Primary Drinking Water Regulation in Fall
2022. At the same time, EPA is continuing the process to
collect information and data on additional PFAS chemicals, as
outlined in the Safe Drinking Water Act.
Question 7. The bipartisan American Innovation and
Manufacturing (AIM) Act was enacted last December and directs
EPA to address HFCs--a refrigerant that causes global warming--
by phasing down their use in the United States by 85 percent
over the next 15 years. The ``next-generation'' alternative to
HFCs are called HFOs. Studies have shown the potential that
HFOs could breakdown in the atmosphere to form TFA, a short-
chain PFAS. Has EPA evaluated the PFAS risks of TFA and how any
resultant PFAS could contaminate air, soil, or water?
Response. Although implementation of the AIM Act is outside
my responsibility as Assistant Administrator for Water, my work
as co-chair of EPA's PFAS Council has highlighted the
importance of close coordination across the Agency on PFAS and
related issues. My colleagues in the Office of Air and
Radiation have highlighted this issue for me and other members
of EPA's PFAS Council, and I look forward to continuing this
close coordination as EPA's implementation of the AIM Act and
the PFAS Roadmap continue. My understanding from the Office of
Air and Radiation is that current research indicates the
environmental effects of TFA, or trifluoroacetic acid, produced
from HFO breakdown are currently very small and are expected to
remain negligible over the next decades, and are currently
judged not to pose a risk to human health or to the
environment.
Question 8. Has the Office of Water or other offices within
EPA provided input to the Office of Air and Radiation as it
considers regulations and implements the AIM Act? If not, do
you have plans to provide input?
Response. Although implementation of the AIM Act is outside
my responsibility as Assistant Administrator for Water, my work
as co-chair of EPA's PFAS Council has highlighted the
importance of close coordination across the Agency on PFAS and
related issues. My colleagues in the Office of Air and
Radiation have highlighted this issue for me and other members
of EPA's PFAS Council, and I look forward to continuing this
close coordination as EPA's implementation of the AIM Act and
the PFAS Roadmap continue.
Question 9. How do you intend to ensure water systems--
particularly small, rural, and disadvantaged systems--can
afford and comply with additional regulatory mandates on PFAS?
Response. Ensuring that small, rural, and disadvantaged
systems can comply with drinking water regulations is a
priority for me, as is taking bold action to address PFAS
contamination that has impacted these communities for too long.
As part of developing a National Primary Drinking Water
Regulation for PFOA and PFOS, EPA will prepare a health risk
reduction and cost analysis that will evaluate these
considerations. EPA also recently sought nominations from small
entities that may be subject to its regulation to provide
advice and recommendations to EPA about the potential impacts
of the proposed rule on small entities.
Question 10. In developing the PFAS Strategic Roadmap, did
EPA consider the potential impacts and costs to small, rural,
and disadvantaged systems before including each proposed
regulatory action?
Response. Harmful PFAS pollution is an urgent public health
and environmental issue facing communities across the United
States, and EPA's PFAS Strategic Roadmap lays out EPA's whole-
of-agency approach to addressing PFAS and delivering needed
protections for the American people. As EPA undertakes the
specific regulatory and non-regulatory actions outlined in the
Roadmap, EPA will consider such potential impacts, seeking to
hold polluters accountable for the contamination they cause and
ensuring disadvantaged communities equitably benefit from
solutions.
Question 11. EPA's PFAS Strategic Roadmap states that EPA
is developing a Notice of Proposed Rulemaking (NPRM) to
designate PFOA and PFOS as hazardous substances under the
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA). On October 26, 2021, EPA announced that
it will initiate two rulemakings to address PFAS contamination
under the Resource Conservation and Recovery Act (RCRA). Why is
EPA pursuing separate rulemakings under both CERCLA and RCRA
when listing PFOA and PFOS as RCRA hazardous waste will also
result in the designation of both chemicals as CERCLA hazardous
substances?
Response. In the PFAS Roadmap, EPA committed to leverage
its full range of statutory authorities and to work with its
partners to implement a multi-media approach to address PFAS
contamination. Both CERCLA and RCRA provide important tools EPA
can use to address PFAS contamination and EPA is committed to
take action accordingly. Under the Biden-Harris Administration,
EPA has restarted the rule development process for designating
PFOA and PFOS as CERCLA hazardous substances, and in the PFAS
Roadmap has committed the Agency to timelines for a proposed
rule (Spring 2022) and final rule (Summer 2023). This
rulemaking will help accelerate public health protections and
quickly deliver results.
In addition, EPA will initiate two additional actions. The
first will be a rulemaking to clarify in our regulations that
the RCRA Corrective Action Program has the authority to require
investigation and cleanup for wastes that meet the statutory
definition of hazardous waste, as defined under RCRA 1004(5).
This modification would clarify that emerging contaminants such
as PFAS can be addressed through RCRA Corrective Action. The
second action the agency is initiating is the process to
propose adding four PFAS chemicals as hazardous constituents in
Appendix VIII under 40 CFR Part 261 (implementing 42 U.S.C.
Sec. 6921), by evaluating data for these chemicals to establish
a record to support a proposed rule. The four PFAS EPA will
evaluate are PFOA, PFOS, perfluorobutane sulfonic acid (PFBS),
and GenX chemicals.
Question 12. In California River Watch v. city of
Vacaville, the Ninth Circuit held that RCRA does not require
that the ``transporter'' of the solid waste must also play some
role in ``discarding'' the waste. Therefore, the Ninth Circuit
held that ``a triable issue exists as to whether the City is a
`past or present transporter' of solid waste'' and that
``[t]aken as true, [the] facts establish that the City is
transporting solid waste through its water-distribution
system.'' How is EPA considering this holding and its potential
impact on local governments and municipal entities as the
Agency pursues rulemakings to address PFAS contamination under
RCRA?
Response. EPA announced on October 26 that the Agency will
be initiating the rulemaking process for two additional actions
to address PFAS under RCRA. As EPA moves ahead with these
processes, EPA will ensure that its rulemaking efforts follow
the law and follow the science.
Question 13. Does EPA plan to convene a Small Business
Advocacy Review panel prior to proposing to designate PFOA and
PFOS as CERCLA hazardous substances?
Response. EPA is analyzing relevant potential impacts as
part of the development of a proposed rulemaking.
Question 14. Has EPA considered the regulatory impact and
costs of disposal of carbon filters if they are regulated as
hazardous materials under CERCLA due to saturation with PFAS?
Response. EPA is evaluating relevant potential impacts as
part of developing a proposed rule to designate PFOA and PFOS
as CERCLA hazardous substances.
Question 15. Does EPA have the authority to provide a
regulatory exemption from liability for public water and
wastewater utilities if certain PFAS are listed as CERCLA
hazardous substances?
Response. EPA is evaluating this issue as part of
developing a proposed rule to designate PFOA and PFOS as CERCLA
hazardous substances. EPA plans to propose a rule in Spring
2022 for public comment, and EPA looks forward to comments on
these and other issues. EPA will ensure that its rulemaking
efforts follow the law and follow the science.
Question 16. CERCLA provides for joint and several legal
liability and allows potentially responsible parties (PRPs) to
sue other PRPs for cost recovery. Where public water and
wastewater utilities treat drinking water and wastewater
containing PFAS, do you believe those systems should be
considered PRPs, and therefore be subject to cost recovery
suits from PFAS manufacturers?
Response. EPA is evaluating this issue as part of
developing a proposed rule to designate PFOA and PFOS as CERCLA
hazardous substances. EPA plans to propose a rule in Spring
2022 for public comment, and EPA looks forward to comments on
these and other issues. EPA will ensure that its rulemaking
efforts follow the law and follow the science.
Question 17. During the hearing, in response to the
discussion of biosolids and PFAS, you stated that ``there is a
lot that we don't know around the human health and ecological
effects of PFAS and biosolids'' and that EPA would have a
``risk assessment in place in the next couple of years.'' In
the PFAS Strategic Roadmap, EPA indicates plans to finalize a
risk assessment in Winter 2024 for PFOA and PFOS in biosolids
that will serve as the basis for determining whether regulation
of PFOA and PFOS in biosolids is appropriate. Will you confirm
that EPA will not issue any regulation impacting biosolids and
PFAS before a final risk assessment has been published?
Response. In the PFAS Roadmap, EPA committed to leverage
its full range of statutory authorities and to work with its
partners to implement a multi-media approach to address PFAS
contamination. The actions in the Roadmap will help accelerate
public health protections and quickly deliver results.
Completing a risk assessment for biosolids by Winter 2024 is
the specific action highlighted in the PFAS Roadmap for
biosolids. However, EPA is committed to considering additional
actions, as appropriate, and to updating the public on any
future actions the Agency may take, including through an annual
public progress report.
Question 18. CERCLA's definition of ``release'' excludes
the normal application of fertilizer. Does EPA consider the
application of biosolids on farms a ``normal application of
fertilizer'' that is exempt under CERCLA?
Response. EPA is evaluating this issue as part of
developing a proposed rule to designate PFOA and PFOS as CERCLA
hazardous substances. EPA plans to propose a rule in Spring
2022 for public comment, and EPA looks forward to public
comments on its proposal.
Question 19. On December 18, 2020, EPA released the Interim
Guidance on Destroying and Disposing of Certain PFAS and PFAS-
Containing Materials. The Interim Guidance outlines the current
State of the science on techniques and treatments, but it does
not recommend a particular technique or treatment for
destruction or disposal of PFAS and PFAS-containing materials.
In the PFAS Strategic Roadmap, EPA details plans to update the
guidance when sufficient useful information is available, and
no later than the statutory deadline of December 2023. If EPA
is unable to publish updated guidance on disposal and
destruction prior to a potential designation of PFOA and PFOS
as CERCLA hazardous substances, how will the Agency direct EPA
staff, contractors, and potentially responsible parties to
dispose of or destroy material containing PFAS?
Response. To meet a requirement of the Fiscal Year 2020
National Defense Authorization Act, EPA published interim
guidance on destroying and disposing of PFAS and certain
identified non-consumer PFAS-containing materials in December
2020 for public comment. It identifies three technologies that
are commercially available to either destroy or dispose of PFAS
and PFAS-containing materials and outlines the significant
uncertainties and information gaps that exist concerning the
technologies' ability to destroy or dispose of PFAS while
minimizing the migration of PFAS to the environment. The
guidance also highlights research that is underway and planned
to address some of these information gaps. Furthermore, the
interim guidance identifies existing EPA tools, methods, and
approaches to characterize and assess the risks to
disproportionately impacted people of color and low-income
communities living near likely PFAS destruction or disposal
sites.
In the PFAS Roadmap, EPA committed to issuing updated
guidance no later than the NDAA statutory deadline of December
2023. EPA's updated guidance will address the public comments
and reflect newly published research results. Since the
publication of the interim guidance, EPA and other agencies
have been conducting relevant research on destruction and
disposal technologies. EPA anticipates that additional research
data will become available starting in 2022. EPA will update
the guidance when sufficient useful information is available
and no later than the statutory deadline.
Question 20. EPA's Interim Guidance acknowledges that
incineration is currently being used by certain entities to
destroy PFAS. What is EPA's position on ongoing incineration of
PFAS?
Response. In the PFAS Roadmap, EPA committed to issuing
updated guidance on destroying and disposing of PFAS and PFAS-
containing materials no later than the NDAA statutory deadline
of December 2023. EPA's updated guidance will address the
public comments and reflect newly published research results.
Since the publication of the interim guidance, EPA and other
agencies have been reviewing relevant research on destruction
and disposal technologies, including incineration. EPA
anticipates that additional research data will become available
starting in 2022. EPA will update the guidance when sufficient
useful information is available and no later than the statutory
deadline.
Question 21. In Spring 2020, EPA established the PFAS
Innovative Treatment Team (PITT), which was a dedicated, full-
time team of multidisciplinary research staff who concentrated
their efforts and expertise on disposal and destruction of
PFAS-contaminated media and waste. The PITT was a 6-month
effort. Since disposal and destruction are listed in the
objectives of all three of the goals in the PFAS Strategic
Roadmap (Research, Restrict, and Remediate), does EPA intend to
reinstate the PITT in any form to focus on this research?
Response. The PITT was a multi-disciplinary research team
that worked full-time for 6-months on applying their scientific
efforts and expertise to a single problem: disposal and/or
destruction of PFAS-contaminated media and waste. While the
PITT formally concluded in Fall 2020, and EPA has no plans to
formally reinstate the PITT, the research efforts initiated
under the PITT continue.
Question 22. In the National PFAS Testing Strategy, EPA
identified secondary and tertiary structural categories. Can
you provide the data set showing the number of PFAS in each
secondary and tertiary structural category and additional
details on the variability within each of the 70 terminal
categories of PFAS?
Response. As described in the National PFAS Testing
Strategy, there are more than 6,000 PFAS arrayed across the 70
nested primary, secondary and tertiary categories. Furthermore,
there is a `distance from centroid' parameter for each of the
PFAS.
EPA also notes that as described in the National PFAS
Testing Strategy document, the categorization process is
iterative and EPA is working to further refine the initial
categories using additional data (e.g., mechanistic,
toxicokinetic data, degradation, and exposure data). EPA is
working to compile and display these lists in a digestible and
informative way as part of developing a more technically
detailed document describing the categorization procedure and
will be prepared to provide the lists when that work is
completed.
Question 23. The National PFAS Testing Strategy states that
EPA used ``the centroids as the conceptual anchor within each
terminal category to define a candidate PFAS for testing'' and
for the 24 terminal categories with an identifiable
manufacturer, EPA ``will consider the distance from the
centroid in selecting PFAS for testing.'' In selecting PFAS
chemicals for test orders, is EPA selecting the closest point
to the centroid where the PFAS chemical has an identifiable
manufacturer?
Response. Yes, when identifying PFAS candidates for
testing, EPA selected the chemical closest to the centroid that
has an identifiable manufacturer.
Question 24. EPA identified only 24 terminal categories
that contained PFAS with an identifiable manufacturer to whom
EPA could issue a test order. Do this figure encompass all
active manufacturers as well as active PFAS chemicals?
Response. No, the 24 terminal categories do not encompass
all active manufacturers and active PFAS. The Strategy
document--see Section 6 and Figure 6, in particular--describes
in detail how EPA identified the initial testing candidates.
EPA expects implementation of the Strategy to be an iterative
process. In other words, additional phases of testing are
expected. In addition, EPA may expand this initial list of
candidate PFAS as EPA identifies additional PFAS manufacturers
through, for example, reporting under the future TSCA section
8(a)(7) rule.
Question 25. What is the relationship between the
categories used to select representative chemicals in EPA's
National PFAS Testing Strategy and EPA's cross-program work to
identify PFAS categories with an expected completion date of
Winter 2021?
Response. To accelerate EPA's ability to address PFAS and
deliver public health protections sooner, EPA is working to
break the large, diverse class of PFAS into smaller categories
based on similarities across defined parameters (such as
chemical structure, physical and chemical properties, and
toxicological properties). This builds upon the work Congress
directed under the 2020 National Defense Authorization Act to
develop a process for prioritizing which PFAS or classes of
PFAS that should be subject to additional research efforts
based on potential for human exposure to, toxicity of, and
other available information. EPA plans to initially categorize
PFAS using two approaches. In the first approach, EPA plans to
use toxicity and toxicokinetic data to develop PFAS categories
for further hazard assessment and to inform hazard-or risk-
based decisions, such as to identify PFAS candidates for
testing as in the National PFAS Testing Strategy. In the second
approach, EPA plans to develop PFAS categories based on removal
technologies using existing understanding of treatment,
remediation, destruction, disposal, control, and mitigation
principles. EPA plans to use the PFAS categories developed from
these two approaches to identify gaps in coverage from either a
hazard assessment or removal technology perspective, which will
help EPA prioritize future actions to research, restrict, and
remediate PFAS.
Question 26. How does EPA plan to use PFAS categories when
developing future regulations and which criteria (e.g.
toxicity; chemical composition) will be used to define these
categories?
Response. To accelerate EPA's ability to address PFAS and
deliver public health protections sooner, EPA is working to
break the large, diverse class of PFAS into smaller categories
based on similarities across defined parameters (such as
chemical structure, physical and chemical properties, and
toxicological properties). EPA plans to initially categorize
PFAS using two approaches. In the first approach, EPA plans to
use toxicity and toxicokinetic data to develop PFAS categories
for further hazard assessment and to inform hazard-or risk-
based decisions. In the second approach, EPA plans to develop
PFAS categories based on removal technologies using existing
understanding of treatment, remediation, destruction, disposal,
control, and mitigation principles.
EPA plans to use the PFAS categories developed from these
two approaches to identify gaps in coverage from either a
hazard assessment or removal technology perspective, which will
help EPA prioritize future actions to research, restrict, and
remediate PFAS. For example, EPA may choose to prioritize
research to characterize the toxicity of PFAS that are not
being addressed by regulations that require the implementation
of removal technologies. Conversely, EPA may prioritize
research to evaluate the efficacy of technologies designed to
remove PFAS that are included in a hazard-based category with
relatively higher toxicities. To support coordination and
integration of information across PFAS categories, EPA plans to
develop a PFAS categorization data base that will capture key
characteristics of individual PFAS, including category
assignments.
Question 27. EPA has been conducting Tier 1 high-throughput
toxicity testing on around 120 different PFAS chemicals. On
March 15, 2021, EPA's website on the Status of EPA Research and
Development on PFAS stated that ``[l]iterature and laboratory
generated-data will be available Q4 2020'' and ``EPA expects a
draft report for internal review in Q4 2020.''EPA has since
removed that language from this website. Is the literature and
laboratory generated-data available? If so, please provide a
link. If not, why is this information unavailable for review by
Congress and the public?
https://web.archive.org/web/20210318065037/https://
www.epa.gov/chemical-research/status-epa-research-and-
development-pfas
Response. EPA is generally releasing results from its PFAS
research and development activities through peer-reviewed
scientific journals. To date, results from one of the high-
throughput toxicity tests that evaluates a subset of important
cellular pathways have been published and are available at
https://www.sciencedirect.com/science/article/abs/pii/
S0300483X21001128. EPA is also curating existing scientific
data on PFAS human health and ecological effects and makes
these data available through the
The website referenced in this question contains
anticipated internal timelines that EPA uses to track planned
research activities, and these timelines are subject to change.
Question 28. What is the status of EPA's Tier 1 toxicity
testing of these PFAS compounds and when will EPA release the
results?
Response. EPA's Tier 1 toxicity testing is ongoing and will
yield information for prioritizing PFAS chemicals for further
testing and to inform possible categorization, as described in
the National PFAS Testing Strategy. EPA is generally releasing
results from its PFAS research and development activities
through peer-reviewed scientific journals.
Question 29. EPA's PFAS Strategic Roadmap states that EPA
will ``[c]lose the door on abandoned PFAS and uses.'' In this
context, can you define ``abandoned'' and provide details of
how EPA intends to ``close the door''?
Response. Many existing chemicals (i.e., those that are
already in commerce and listed on the TSCA Inventory of
chemicals), including PFAS, are currently not subject to any
type of restriction under TSCA. In some instances, the
chemicals themselves have not been actively manufactured for
many years. In others, chemicals may have in the past been
manufactured or processed for certain uses that have been
discontinued. Absent restriction, manufacturers are free to
begin producing those abandoned chemicals or resume those
abandoned uses at any time. Under Section 5(a) of TSCA, by
rule, EPA can designate uses of a chemical that are not
currently ongoing--and potentially all uses associated with an
inactive chemical--as ``significant new uses.'' Doing so
ensures that an entity must first submit a notice and certain
information to EPA before it can resume manufacturing or
processing for those uses. TSCA then requires EPA to review and
make an affirmative determination on the potential risks to
health and the environment and to require safety measures to
address unreasonable risks before allowing the manufacturing or
processing to resume. EPA is considering how it can apply this
significant new use authority to help address abandoned uses of
PFAS as well as future uses of PFAS on the inactive portion of
the TSCA Inventory.
Question 30. Did EPA convene a Small Business Advocacy
Review panel prior to publishing the TSCA Reporting and
Recordkeeping Requirements for PFAS proposed rule?
Response. At the time the rule was proposed, EPA concluded
that this action would not have a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), as described in Section
VII.C of the proposed rule (86 FR 33926) and therefore did not
convene a SBAR panel prior to proposal. EPA is reviewing public
comments and conducting internal analyses to determine whether
a supplemental proposal and/or an SBAR panel is needed.
Question 31. In vacating the Navigable Waters Protection
Rule, EPA and this Administration are interpreting the opinions
of just two district court decisions as the ``law of the land''
and applying nationally. Does EPA plan to apply this same
standard to any district court opinion moving forward?
Response. It would be premature for me to speculate on the
content and impacts of hypothetical future judicial decisions.
Question 32. After EPA sent a draft proposal for a new
definition of ``waters of the United States'' to the Office of
Management and Budget (OMB) for review, the Agency later
announced its plan to initiate regional roundtables on the
WOTUS definition. The fact you sent the proposal to OMB before
announcing the roundtables suggest they are nothing more than
window-dressing because they did not inform your development of
the regulatory proposal. In your proposal, are there any
substantive changes beyond a simple reinstatement of the pre-
2015 definition and updates to be consistent with relevant
Supreme Court decisions?
Response. The agencies have initiated a new rulemaking
process that proposes to return to pre-2015 regulations and
would re-establish in our regulations the familiar and
fundamental protections for waters and wetlands on a long-
standing scientific, regulatory, and historical foundation,
updated to be consistent with Supreme Court decisions. That
proposed rule is now available for public review and comment.
The agencies also anticipate developing a second rule that
would be informed by further robust stakeholder engagement as
well as the experience of implementing the pre-2015
regulations, the 2015 Clean Water Rule, and the 2020 Navigable
Waters Protection Rule (NWPR).
Question 33. If there are changes beyond a simple
reinstatement of the pre-2015 definition and updates to be
consistent with relevant Supreme Court decisions, why did EPA
send a proposal to OMB before completing the stakeholder
process?
Response. The agencies have initiated a new rulemaking
process that proposes to return to pre-2015 regulations and
would re-establish in our regulations the familiar and
fundamental protections for waters and wetlands on a long-
standing scientific, regulatory, and historical foundation,
updated to be consistent with Supreme Court decisions. That
proposed rule is now available for public review and comment.
The agencies also anticipate developing a second rule that
would be informed by further robust stakeholder engagement as
well as the experience of implementing the pre-2015
regulations, the 2015 Clean Water Rule, and the 2020 NWPR.
Question 34. What does EPA view as the necessary updates
for the pre-2015 regime to be consistent with relevant Supreme
Court decisions?
Response. The agencies have initiated a new rulemaking
process that proposes to return to pre-2015 regulations and
would re-establish in our regulations the familiar and
fundamental protections for waters and wetlands on a long-
standing scientific, regulatory, and historical foundation,
updated to be consistent with Supreme Court decisions. That
proposed rule is now available for public review and comment.
The agencies also anticipate developing a second rule that
would be informed by further robust stakeholder engagement as
well as the experience of implementing the pre-2015
regulations, the 2015 Clean Water Rule, and the 2020 NWPR.
35. During the hearing, you were asked whether the
replacement of the Navigable Waters Protection Rule would be
used to ``impose new regulatory burdens in the name of climate
change.'' You responded by saying, ``[n]o,'' and that you ``are
not using the WOTUS role in that way.'' Will you confirm that
climate change will not be evaluated as a factor in determining
whether a water is a ``navigable water'' in EPA's rulemaking to
repeal the Navigable Waters Protection Rule?
Response. As I said during the hearing, EPA is not
utilizing the ``Waters of the United States'' rulemaking to
impose regulatory burdens in the name of climate change. The
agencies are working expeditiously to move forward with the
rulemakings announced on June 9, 2021, in order to better
protect our nation's vital water resources that support public
health, environmental protection, agricultural activity, and
economic growth. The agencies' regulatory effort will be guided
by several considerations, including considering the latest
peer-reviewed and relevant science, including the science of
climate change. The agencies remain committed to crafting a
durable definition of ``waters of the United States'' that is
informed by diverse perspectives and based on an inclusive
foundation.
Question 36. Will you confirm that climate change will not
be evaluated as a factor in determining whether a water is a
``navigable water'' in EPA's future rulemaking to replace the
Navigable Waters Protection Rule following the repeal
rulemaking?
Response. As I said during the hearing, EPA is not
utilizing the ``Waters of the United States'' rulemaking to
impose regulatory burdens in the name of climate change. The
agencies are working expeditiously to move forward with the
rulemakings announced on June 9, 2021, in order to better
protect our nation's vital water resources that support public
health, environmental protection, agricultural activity, and
economic growth. The agencies' regulatory effort will be guided
by several considerations, including considering the latest
peer-reviewed and relevant science, including the science of
climate change. The agencies remain committed to crafting a
durable definition of ``waters of the United States'' that is
informed by diverse perspectives and based on an inclusive
foundation.
Question 37. During the hearing, you were asked whether you
could confirm that EPA would not be removing the exemptions for
prior converted crop lands that existed in the Navigable Waters
Protection Rule in any future rulemaking, to which you
responded with ``yes.'' Will you confirm that EPA will retain
the prior converted croplands exemption as it existed in the
Navigable Waters Protection Rule in EPA's rulemaking to repeal
the Navigable Waters Protection Rule?
Response. The agencies have initiated a new rulemaking
process that proposes to return to pre-2015 regulations and
would re-establish in our regulations the familiar and
fundamental protections for waters and wetlands on a long-
standing scientific, regulatory, and historical foundation,
updated to be consistent with Supreme Court decisions. That
proposed rule is now available for public review and comment,
and the proposed rule includes a proposed exemption for prior
converted croplands.
The agencies also anticipate developing a second rule that
would be informed by further robust stakeholder engagement as
well as the experience of implementing the pre-2015
regulations, the 2015 Clean Water Rule, and the 2020 NWPR. I do
not want to prejudge the outcome of either regulatory process;
EPA looks forward to ongoing and robust stakeholder engagement
as the Agency develops a proposed second rule and takes public
comment on both.
Question 38. During the hearing, you confirmed details
about EPA's plan to retain the prior converted croplands
exemption in the Agency unpublished proposal that was with OMB
for interagency review, but when asked about other agriculture-
related elements that could be potentially covered in a
proposal or subsequent rulemaking, you replied that you
``cannot prejudge the outcome of a rulemaking.'' Can you
explain how you did not prejudge the outcome of a rulemaking
when you confirmed details about EPA's plan to retain the prior
converted croplands exemption in the Agency unpublished
proposal?
Response. The agencies have initiated a new rulemaking
process that proposes to return to pre-2015 regulations and
would re-establish in our regulations the familiar and
fundamental protections for waters and wetlands on a long-
standing scientific, regulatory, and historical foundation,
updated to be consistent with Supreme Court decisions. That
proposed rule is now available for public review and comment,
and the proposed rule includes a proposed exemption for prior
converted croplands.
The agencies also anticipate developing a second rule that
would be informed by further robust stakeholder engagement as
well as the experience of implementing the pre-2015
regulations, the 2015 Clean Water Rule, and the 2020 NWPR. I do
not want to prejudge the outcome of either regulatory process;
EPA looks forward to ongoing and robust stakeholder engagement
as the Agency develops a proposed second rule and takes public
comment on both.
Question 39. Can you provide details on any other
agriculture-related elements that could be potentially covered
in a proposal or subsequent rulemaking and all information on
why EPA is considering addressing them in this proposal or
subsequent rulemaking?
Response. The agencies have initiated a new rulemaking
process that proposes to return to pre-2015 regulations and
would re-establish in our regulations the familiar and
fundamental protections for waters and wetlands on a long-
standing scientific, regulatory, and historical foundation,
updated to be consistent with Supreme Court decisions. That
proposed rule is now available for public review and comment.
The agencies also anticipate developing a second rule that
would be informed by further robust stakeholder engagement as
well as the experience of implementing the pre-2015
regulations, the 2015 Clean Water Rule, and the 2020 NWPR. I do
not want to prejudge the outcome of either regulatory process;
EPA looks forward to ongoing and robust stakeholder engagement
as the Agency develops a proposed second rule and takes public
comment on both.
Question 40. On the briefing call the Agency provided to
Committee staff, EPA staff stated that the initial rulemaking--
the repeal of the Navigable Waters Protection Rule--will also
seek to incorporate concepts of regionalization. Under the
implementation of a ``regionalization'' element to a rulemaking
relating to navigable waters, how would EPA determine the
different standards or factors to apply to different areas of
the United States, such as those areas that are coastal versus
those that are landlocked, or those that are arid versus those
that receive more precipitation?
Response. The agencies have initiated a new rulemaking
process that proposes to return to pre-2015 regulations and
would re-establish in our regulations the familiar and
fundamental protections for waters and wetlands on a long-
standing scientific, regulatory, and historical foundation,
updated to be consistent with Supreme Court decisions. That
proposed rule is now available for public review and comment.
The agencies also anticipate developing a second rule that
would be informed by further robust stakeholder engagement as
well as the experience of implementing the pre-2015
regulations, the 2015 Clean Water Rule, and the 2020 NWPR. I do
not want to prejudge the outcome of either regulatory process;
EPA looks forward to ongoing and robust stakeholder engagement
as the Agency develops a proposed second rule and takes public
comment on both.
Question 41. EPA has detailed that the Office of Water is
managing three pilot programs on the implementation of the
White House's Justice40 initiative, including the Drinking
Water and Clean Water State Revolving Funds and the Water
Infrastructure Improvements for the Nation Act (WIIN Act) Grant
Programs focused on lead. Can you provide more details on the
purpose of the pilot programs and why these three programs were
selected?
Response. The pilot programs identified in the July 20,
2021, ``Interim Implementation Guidance for the Justice40
Initiative'' will undertake an initial implementation of the
Justice40 Interim Implementation Guidance to maximize the
benefits that are directed to disadvantaged communities. These
pilots are intended to serve as a blueprint for other agencies
to help inform their work to implement the Justice40 Initiative
across government. The programs listed in the July 20, 2021,
memorandum, including EPA's State Revolving Funds and Reducing
Lead in Drinking Water grant program, were selected by
reviewing White House Environmental Justice Advisory Council
recommendations, consulting with the White House Environmental
Justice Interagency Council, and reviewing agency responses to
information requests about current Federal investments in
disadvantaged communities.
Question 42. Are there other programs in the Office of
Water that are being targeted in further implementation of the
Justice40 initiative?
Response. Justice40 is a whole-of-government effort to
ensure that Federal agencies work with states and local
communities to make good on President Biden's promise to
deliver at least 40 percent of the overall benefits from
Federal investments in climate and clean energy to
disadvantaged communities. The July 20 interim guidance
identifies a number of potentially covered programs, and the
Office of Water programs identified above are the only programs
specifically included as pilot programs.
Question 43. As part of potential implementation of the
Justice40 initiative, does EPA envision changes to the
operations of these programs that would impact those who
receive funding or impose any restrictions on what grantees
could do with potential funding?
Response. Consistent with the July 20, 2021, interim
implementation guidance, EPA is working to undertake an initial
implementation of the Justice40 Interim Implementation Guidance
to maximize the benefits that are directed to disadvantaged
communities. EPA is currently identifying applicable program
funding mechanisms, policies, and procedures based on the July
20 interim implementation guidance, and is considering program-
specific guidance that provides recommendations for maximizing
the benefits of the programs that accrue in disadvantaged
communities, as appropriate and consistent with applicable law.
Question 44. During a recent environmental justice
stakeholder call, EPA officials stated that as part of the
potential implementation of the Justice40 initiative, funds
that are revolved back to the states could be subject to any
subsequent Justice40 criteria. Can you provide an explanation
of what this means or how it would change the implementation of
these and potentially other programs at EPA?
Response. As noted above, EPA is currently identifying
applicable program funding mechanisms, policies, and procedures
based on the July 20 interim implementation guidance, and is
considering program-specific guidance that provides
recommendations for maximizing the benefits of the programs
that accrue in disadvantaged communities, as appropriate and
consistent with applicable law.
Question 45. Does this not change retroactively the agreed
understanding under which those Federal dollars were previously
provided to the states? If not, why not?
Response. EPA does not expect implementation of the
Justice40 initiative to impact any funding that has already
been provided to states or other grant recipients. Consistent
with the July 20 interim implementation guidance, EPA is taking
action in accordance with its existing authorities and
consistent with applicable law.
Question 46. I have previously written to EPA on April 27,
2021 and July 29, 2021 requesting a full accounting of how the
Agency has expended and plans to expend the $100 million
appropriated under section 6002 of H.R. 1319, the ``American
Rescue Plan'' (ARP, Public Law 117-2). Congress provided four
specific statutory authorities under which EPA is authorized to
issue grants or conduct activities--which included the Safe
Drinking Water Act. EPA has provided an initial, incomplete
response to me on June 24, 2021, and then, an additional
response on September 14, 2021, but EPA has not provided a
detailed allocation plan to the Committee that provides details
of all the funding that has been provided using Safe Drinking
Water Act authority. Can you provide details on all ARP funding
that has been issued using Safe Drinking Water Act authority?
Response. EPA is committed to maximum transparency with
you, your colleagues in Congress, and the American people. We
provided detailed information in our two letters, explaining
the work the Agency has done to implement the American Jobs
Plan, which was signed into law by President Biden on March 11,
2021. Since that time, EPA has developed detailed budget
allocations and internal controls required to support
implementation. On June 24, we provided you with a summary of
the budget amounts by program project, a description of how the
EPA plans to use the funds, and the availability of resources.
Subsequently, as EPA began to fund proposed projects and
request proposals to fund more projects, EPA shared information
with the public on June 25 and July 7. On September 14, we
provided you with updated version of the Agency's allocation
plan, indicating funds that had been obligated since June, as
well as the ARP statutory alignment of each allocation. That
updated version specified that the program projects authorized
at least in part by SDWA section 1442 include: civil
enforcement, climate protection program, compliance monitoring,
criminal enforcement, drinking water programs, environmental
justice, integrated environmental strategies, children and
other sensitive populations, and regulatory/economic-management
and analysis. Additionally, EPA has since published a website,
available at www.epa.gov/arp to provide regular updates and
further uphold our commitment to the fullest transparency
possible regarding the reporting, tracking, and communication
of EPA's use of ARP funds, including the eventual outcomes of
these resources in making a difference on the ground for our
country's most disproportionately impacted communities.
Question 47. EPA has previously detailed that the Agency
``prioritized use of existing grant and contractual vehicles
for expenditure of these funds to facilitate the quickest
allocation of resources to aid in critical responses to the
impacts of the COVID-19 pandemic, which continues to
disproportionately impact these communities.'' Were any of
these ``existing grant and contractual vehicles'' within the
Office of Water?
Response. As explained in our September 14 letter, after
President Biden signed the American Rescue Plan in March, EPA
developed an allocation plan and internal controls, then
allocated resources among the Environmental Programs and
Management (EPM) account and State and Tribal Assistance Grants
account. Among other program projects in the EPM account, one
of the program projects allocated funds is for the Office of
Water's drinking water program. These funds will be used to
support SDWA section 1442(a) science, research, demonstrations
or other section 1442 activities as well as drinking water
systems lacking sufficient funds to meet Safe Drinking Water
Standards. These funds will be used to provide financial and
managerial training, tribal drinking water compliance, and
technical assistance.
Questions from Senator Inhofe to Assistant Administrator Radhika Fox
Question 1. Ms. Fox, it's my understanding you are
incorporating the supposed impacts of ``climate change'' into
the repeal of the Navigable Waters Protection Rule (NWPR). Will
you please elaborate on EPA's plan to incorporate ``climate
change'' into the repeal of the NWPR? a. Have you collaborated
with any officials in the White House on incorporating
``climate change'' into the repeal of the NWPR?
Response. As I said during the hearing, EPA is not
utilizing the ``Waters of the United States'' rulemaking to
impose regulatory burdens in the name of climate change. The
agencies are working expeditiously to move forward with the
rulemakings announced on June 9, 2021, in order to better
protect our nation's vital water resources that support public
health, environmental protection, agricultural activity, and
economic growth. The agencies' regulatory effort will be guided
by several considerations, including considering the latest
peer-reviewed and relevant science, including the science of
climate change. The agencies remain committed to crafting a
durable definition of ``waters of the United States'' that is
informed by diverse perspectives and based on an inclusive
foundation.
Question 2. Ms. Fox, farmers and ranchers are determined to
keep their land and water clean as that is vital to crop and
livestock stability as well as for future generations of
farmers and ranchers. As EPA prepares to repeal and replace the
NWPR, it is vital that the Agency maintain important
agricultural exemptions including for stock ponds, agricultural
ditches and prior converted cropland. Will these specific
exemptions be maintained? a. And to what extent has EPA engaged
with agriculture stakeholders so far?
Response. The agencies have initiated a new rulemaking
process that proposes to return to pre-2015 regulations and
would re-establish in our regulations the familiar and
fundamental protections for waters and wetlands on a long-
standing scientific, regulatory, and historical foundation,
updated to be consistent with Supreme Court decisions. That
proposed rule is now available for public review and comment.
The agencies also anticipate developing a second rule that
would be informed by further robust stakeholder engagement as
well as the experience of implementing the pre-2015
regulations, the 2015 Clean Water Rule, and the 2020 NWPR. I do
not want to prejudge the outcome of either regulatory process;
EPA looks forward to ongoing and robust stakeholder engagement
as the Agency develops a proposed second rule and takes public
comment on both. Section 404(f) of the Clean Water Act contains
statutory exemptions for certain agricultural activities which
cannot be changed by the proposed rulemakings.
The agencies are committed to hearing from voices across
the spectrum when developing a durable regulatory definition on
which co-regulators, stakeholders, and communities can rely. As
a first step, on July 30, 2021, EPA and the Army announced a
series of engagement opportunities, including an opportunity
for stakeholders and the public to provide written
recommendations and participate in a series of public meetings.
In addition, the agencies initiated federalism and Tribal
consultations and hosted a series of dialogs with State and
Tribal co-regulators this fall.
The agencies also plan to convene regionally focused and
inclusive roundtables. These roundtables will allow a full
spectrum of the agencies' partners to engage and discuss their
experience with definitions of ``waters of the United
States''--including what has worked and what has not. The
roundtables will provide opportunities to discuss geographic
similarities and differences, particular water resources that
are characteristic of or unique to each region, and site-
specific feedback about implementation. The agencies are
interested in hearing from all stakeholders, including
communities, states, Tribes, local governments, association
groups, small businesses, farmers, and families. EPA recently
extended the deadline for roundtable submissions until December
1, 2021.
Questions from Senator Shelby to Assistant Administrator Radhika Fox
Question 1. On the briefing call that the EPA provided to
EPW committee staff, the agency and the Corps of Engineers
stated that step 1-the repeal of the Navigable Waters
Protection Rule--will also seek to incorporate concepts of
regionalization. a. Does this mean that there could be
different standards or factors that apply to different areas of
the United States, such as those areas that are coastal versus
those that are landlocked, or those that are arid versus those
that receive more precipitation? What does this mean for states
like my own, where there are a wide range of different climates
and ecosystems--does this mean there is a possibility that
there could even be different standards that apply in different
parts of my state?
Response. The agencies have initiated a new rulemaking
process that proposes to return to pre-2015 regulations and
would re-establish in our regulations the familiar and
fundamental protections for waters and wetlands on a long-
standing scientific, regulatory, and historical foundation,
updated to be consistent with Supreme Court decisions. That
proposed rule is now available for public review and comment.
The agencies also anticipate developing a second rule that
would be informed by further robust stakeholder engagement as
well as the experience of implementing the pre-2015
regulations, the 2015 Clean Water Rule, and the 2020 NWPR. I do
not want to prejudge the outcome of either regulatory process;
EPA looks forward to ongoing and robust stakeholder engagement
as the Agency develops a proposed second rule and takes public
comment on both.
Senator Carper. Thank you for that statement, and again,
thank you for coming.
I would note for the record, my colleagues know I like to
call people on their birthdays, and today is Vice President
Kamala Harris' birthday. Brian Schatz, who is one of our Senate
colleagues from Hawaii, it is his birthday, and as it turns
out, it is also the birthday of Sheldon Whitehouse.
Often, we ask whoever is witnessing to lead us in singing
Happy Birthday to the witness. I was going to ask for fun, just
to say my first question would be, would you lead us in singing
Happy Birthday to Sheldon Whitehouse? I am not going to do that
today. I won't put you through that torture.
Ms. Fox. Happy birthday, Senator.
Senator Whitehouse. Thank you.
Don't allow him to haze you this way. Now, if you wanted me
to sing Happy Birthday, we could clear this room in a moment.
[Laughter.]
Senator Carper. Well, Senator Whitehouse, normally the
person having the birthday receives gifts, but for us, Sheldon
is a gift from the people of Rhode Island. I am honored to have
the chance to serve with him, especially to have his leadership
on this committee. We will sing later.
Let me start off with a question or two on effluent
guidelines. One of the key actions in the plan that you have
been working on with your colleagues, one of the key actions in
the plan is to limit discharges of PFAS from facilities into
surface water and municipal sewage treatment plants.
The roadmap mentions plans to develop rules to control
discharges from the following industrial sources: organic
chemicals, plastics, and synthetic fibers, metal finishings,
and electric plating facilities, among others. Here is my
question: would you just explain for us why the roadmap does
not include plans to develop rules for six additional
industrial sources that are listed in the PFAS action plan? For
those sources, just tell us more about the agency's plans to
gather information as well as any other next steps the agency
is considering, please.
Ms. Fox. Thank you for the question, Senator. So, we have
actually been getting a lot of questions about how we are
utilizing our Effluent Limitations Guideline Program to really
tackle these industrial discharges, so I appreciate the
question.
You are right; we are moving forward with rulemaking that
was announced last month, the three industrial categories that
I just named. We anticipate completion of one of those rules by
the fall of 2023 and the second one by the fall of 2024. We
have information, good information, on those three industrial
categories, and therefore, we are acting and undertaking these
rules.
There is also a number of the industrial categories, but we
have some information, but not enough information to make a
scientific determination if a regulation is needed, and those
are around. In that instance, what we are doing is undertaking
detailed studies to really build the record, the scientific
record to make that determination, and those are for landfills,
textiles and carpeting, and electrical components. The career
team anticipates those detailed studies will be complete by
this time next year to inform whether or not we will undertake
a rulemaking.
Another category that we are moving forward with as it
relates to ELGs is, industries where concern has been
expressed, but we don't have enough information around PFAS
discharges, so those include paint formulators, plastics, and
leather tanneries. With those three industrial categories, we
are undertaking data reviews as well as we are going to be
doing mandatory data calls on those facilities, so we can learn
more, and then be able to make an informed decision about
whether a regulation is necessary.
Then, the way that we are tackling, one additional approach
we are taking is that there is several industries, including
airports and pulp and paper manufacturers, where we understand
that the use of PFAS is going to be phased out by 2023 or 2024.
In those instances, what we are doing is monitoring. As part of
our ELG Plan 15, which will be finalized in the fall of 2022,
we will report out to the American people about what we learn
from that monitoring.
I would say, we are taking a very proactive approach around
the Effluent Limitation Guidelines. We are acting when we have
the information to develop the rules, and we are building the
scientific foundation where we don't for future decisions. I
anticipate that we will make significant progress on all of
those industrial categories by the end of 2024.
Senator Carper. Great, thanks for that response.
My second question is around environmental justice. Ms.
Fox, we are pleased to see that the concept of environmental
justice is woven throughout the plan. It is a well-known fact
that many sources of pollution, including PFAS, are
disproportionately located near low-income communities, and
oftentimes, communities of color. In the roadmap, EPA commits
to ensuring that these communities have equitable access to
solutions to address this critical public health issue.
Here is my question: please share with us today any
specifics you may have about how the agency will prioritize the
protection of disadvantaged communities through actions
described in EPA's roadmap.
Ms. Fox. Happy to, Senator. Under Administrator Regan's
leadership, he has really directed all of his AAs that
environmental justice is not a program that we have over here.
It has to be woven into the very fabric of how we do our work,
and that is what you see in the PFAS roadmap.
One of the things that we have committed to do is something
that the EJAC, or Environmental Justice Advisory Council has
long been asking for, which is we are going to be taking this
roadmap on the road. We are going to be visiting every EPA
region and meeting with those communities that are on the front
lines of PFAS contamination to really get their feedback on the
roadmap, what other actions they want us to be doing.
Certainly, members of this committee have some of these
communities in your States. So we welcome also, partnering with
all of you as we have those environmental justice sessions on
PFAS across the Country.
Additionally, we are really trying to think about how we
bake in environmental justice considerations into all of the
rulemaking. So for example, in my shop, in the Office of Water,
we are thinking about that very seriously in the context of the
drinking water standard that we are moving forward with. As we
do more health advisories, we are going to make sure they are
in multiple languages so that all communities are understanding
the health risks.
Then, we are actually utilizing EJSCREEN, for example, the
Office of Air and Radiation as they are building the technical
foundation to consider whether we should designate PFAS as a
hazardous air pollutant. They are utilizing tools like EJSCREEN
as they are building that technical foundation. So we are
really, at every turn, trying to incorporate those
considerations into this work.
Senator Carper. Thank you. Senator Capito is next. I think
she is indicating her willingness to yield to Senator Inhofe.
Let me just walk through the order here. It looks like it
will be Senator Inhofe next, Senator Capito after him, Senator
Whitehouse, Senator Cramer has joined us, welcome, Kevin,
Senator Duckworth, who is with us by WebEx, and Senator Lummis,
who is with us by WebEx. A lot of interest in this hearing. The
room is not full of Senators, but we have Ben Cardin after
Senator Capito, I mentioned.
Senator Capito. He will go after Inhofe.
Senator Carper. OK, good enough. So, Jim Inhofe, Senator
Cardin, and then back to Senator Capito. Thanks so much.
Senator Inhofe. I want to thank Senator Capito and
everyone. Some are not aware that we have competing committees,
and it is difficult to be in two places at once.
I want to thank you for the time that we have spent
together, and we talked about these things. While there are
some basic differences in our philosophies and the various
areas in the jurisdiction of this committee, you are a great
one to listen to and be a part of and communicate with, and I
look forward to continuing that.
I appreciate the conversation we had yesterday. It is
comforting to know on one issue that you are not looking, and I
think it is good to State this publicly, to punish anyone. As
you know, my major concern, as pointed out by the Chairman, I
have a lot of activity in aviation. So it is only natural I get
comments and questions from our commercial aviation community
out there with this fear that they have that this suppressing
material that can be used to suppress fires is something they
may have a problem with, because they want to be sure that the
airport operators are not going to be held responsible for
something over which they really have no control.
We talked about that yesterday, and I am not sure what you
can say that would give the maximum comfort to this community.
Let's give it a try.
Ms. Fox. Senator, first of all, it is lovely to see you
again. But what I would say is you pointed out an issue that
really requires very strong interagency coordination. If FAA or
DOD are requiring that airport operators are utilizing this
firefighting foam and it then causes contamination, that they
may be responsible for, if PFAS are designated as a hazardous
substance under CERCLA, it is really our responsibility as
Federal agencies to work together to kind of iron out those
things.
My understanding, we are working closely with FAA and DOD
to first find alternatives to firefighting foam, safe
alternatives that don't have PFAS. There is really great
progress being made. So I think the industry is going to be
moving in that direction. But really, that is critically
important.
In part because of the need for this type of interagency
coordination of various policies, Brenda Mallory, the Chair of
White House Council for Environmental Quality, just on Monday
launched an interagency council that has the Deputy Secretaries
working together to resolve these kinds of things. But I can
assure you, Senator, we are not looking to punish airport
operators if they are following direction and they are
following guidance provided by FAA. We have to figure that out.
Senator Inhofe. Yes, and I understand that. The guidance is
out there, but the problem is it is not done yet. The problem
is that some disaster could happen in the meantime, and these
people are out there not being able to answer the question,
what happens if we have a disaster, and we have a material that
we are not able to use.
So, the problem is still a problem, and I understand, and
you are very emphatic to me, that you are personally involved
in looking into it and trying to get the White House to do the
same thing, but it is not done yet.
Have you thought about having some kind of an exemption put
in place that could work? I almost have to carry something back
to give some comfort to individuals who have expressed that
concern.
Ms. Fox. So, we are very early in the rural development
process for the CERCLA hazardous designation, and we anticipate
proposing that rule in the spring of 2022, so in about 6 months
or so. There is going to be a robust process of both
interagency review of the proposed rule as well as robust
opportunity for public comment on the rule itself before we get
to a final rule the following year.
So I can't prejudge the outcome of the rule, Senator. It
has to go through that regulatory process, but I hear you loud
and clear on this concern, and you have my commitment that I
will take this concern back to the leadership in the Office of
Land and Emergency Management, who are leading the development
of that proposed rule.
Senator Inhofe. Well, I will try to participate in the
little area of comfort for these people and may be calling up
and asking you to reach in some other areas that might offer
some type of temporary relief.
I know that my time is about to expire, but I did want to
talk about the EPA does not have plans to use the WOTUS in
regulatory process as an excuse to impose new regulatory
burdens in the name of climate change. Now, we did talk about
that. Is there any comment you can make, very briefly, on that?
Because that is a concern that we have.
Senator Carper. I would ask you to be brief in your
response, and then you can respond more fully for the record,
but go right ahead.
Ms. Fox. Absolutely, I am happy to respond more fully for
the record, but the answer is no, we are not using the WOTUS
rule in that way.
Senator Inhofe. Thank you very much.
Senator Carper. That was pretty brief.
Senator Inhofe. That is brief.
[Laughter.]
Senator Carper. Not every witness is that brief.
Senator Inhofe. One last, very, very brief though, Mr.
Chairman, that is, because I think I know what her answer is,
can you confirm that these important agricultural exemptions
can be maintained?
Ms. Fox. I am happy to give an in-depth answer in the
questions for the record on that, as well.
Senator Inhofe. I will live with that.
Senator Carper. Thanks. Thanks so much for joining us. I
think Jim Inhofe may have more flight hours than anybody in the
Senate, except maybe for our late colleague from the Vietnam
War, John McCain, and my guess is Mark Kelly. I remember that
Kelly was a member of, was a Navy captain fighter pilot, and
the three of you.
Senator Inhofe. I have more hours than the two of them put
together, but they have more miles than I do.
[Laughter.]
Senator Carper. Well, all of you have bragging rights,
then.
Senator Whitehouse. Kelly had more altitude.
[Laughter.]
Senator Inhofe. You got it.
Senator Carper. Something for everybody.
Senator Cardin, I think, is joining us by WebEx. Ben, are
you out there? Earth calling Senator Cardin, come in Ben. We
will wait for him to join us. He may be like Senator Inhofe,
who has a lot of committee meetings going on at the same time,
so Senator Capito, I think you are on, please.
Senator Capito. Do you want to go to Senator Whitehouse, to
the Democrats? You are good? OK, thank you.
Well, welcome again, and the first question I have is a
little bit along the same lines as Senator Inhofe. You and I
spoke briefly, and I mentioned a possible case study of a
wastewater plant that would then remove PFOA or PFOS from the
water in terms of cleaning it, but then have biosolids left
over, and the disposal of those. There is some concern about
what would the liabilities be for a wastewater, that basically,
they didn't create it, they are trying to clean it up, yet they
have to dispose of that. If you could clarify the liability
issue, what you all are looking at that, much like what
Chairman Inhofe said.
Ms. Fox. Absolutely. So, I think you mean, Senator, in the
context of designating PFOA and PFOS as a hazardous substance
under CERCLA, but liability?
Senator Capito. Right.
Ms. Fox. So, as with other hazardous substances that have
long been established as hazardous under CERCLA, there is a
process that is followed. If a CERCLA designation is made on
these two PFAS chemicals, it does a couple of things. One, it
requires that facilities report in a quantifiable way on
potential releases, but then in order to have liability, there
is also a responsibility to show who is responsible for that
PFAS release, and then a court determination.
So, there is a process that has long been in place for a
range of hazardous substances under CERCLA. Should PFAS be
named a hazardous substance, if we get to that final rule, it
would be the same way.
Then, since you also asked about biosolids separately from
the liability issue, one of the key actions that we are taking
in the roadmap is to begin a risk assessment, because there is
a lot that we don't know around the human health and ecological
effects of PFAS and biosolids. So we are also undertaking
greater research to have that risk assessment in place in the
next couple of years.
Senator Capito. Thank you. Let us kind of take it down a
little bit, if somebody's watching this, and they don't know
what PFOA, PFOS is, although we have said it is everywhere,
which we know that is true in certain levels. The drinking
water level, there is a level right now that is a suggested
level, I guess, of safety. In your strategic roadmap, have done
something that I have been pressing for both through the last
administration and this one is to set a definitive level that
is science-based that we can know what our kids and grandkids
are drinking, and we are drinking, has an acceptable level.
But in the roadmap, the length of time that this is going
to take is very frustrating to me, because we have been looking
at this, gosh, I have probably been involved in this issue two
or 3 years, and why is it going to take so long when we know
that the Office of Water can move more quickly? If you could
just explain to people who are listening right now, what that
level might be right now, and how you anticipate that this
lengthy period of time is going to change that level.
Ms. Fox. Senator Capito, I share your frustration. We
should have had a drinking water standard for PFOA and PFOS
years ago. Administrator Regan and I, we are trying to make up
for lost time in moving forward this designation.
Why it is so lengthy, why it takes so long, is we have to
follow the science, and we have to follow the law as we develop
these regulations, and many of those steps and processes are
established by Congress. They are embedded in the Safe Drinking
Water Act.
I will say that we are very much trying to meet the
statutory deadline, or, I am sorry, beat the statutory deadline
of March 2023, so we intend to propose a rule by the fall of
2022. We will take all of the interagency review and feedback;
we will take ample public comment. It is such an important
rule; we have to get it right.
We are aiming to have that rule in place by 2023. We are
not taking it lightly. We are concerned about communities who
have been waiting far too long for such protections as a
drinking water standard would provide.
But please know we are moving with all deliberate speed,
but we want to get something that is right, something that is
durable, and that is grounded in science.
Senator Capito. I want it to be right, and I want it to be
grounded in science.
But I am frustrated. Looking through the roadmap, all of
the different aspects of this, there is a lot in there, and
there is a lot of things to do, without finding a better way of
stating that.
So I would urge you, because I think this drinking water
level is so very, very important, to prioritize this, if not
the top, near the top of the list, because of the impacts it
will have all across this Country. Thank you for coming.
Ms. Fox. Thank you, Senator.
Senator Carper. Senator Capito, thank you for your
continued interest and leadership on this, Senator. I don't
know if you have been figuring out where the road trip you are
going to be taking across the Country is going to, as you
unveil the roadmap, if that roadmap might take you through West
Virginia, but that might be the place.
Ms. Fox. I am still waiting for my invitation, Senator.
Senator Capito. Oh, any time. We are happy to have you.
Senator Carper. The welcome mat is out.
Senator Cardin tried to join us by WebEx a little bit ago,
and he couldn't, and was unable to because of the technology,
but he is here, live and in person. I am going to yield to him
right now.
Senator Cardin. Well, Mr. Chairman, I was with you with
WebEx because I was in my car. But now that I am here, in
person, I didn't want to miss the opportunity with meeting
Administrator Fox.
Thank you very much. I am going to follow-up on the Chair
and the Ranking Member on the water standards.
Let me just point out that all of us have examples in our
States. In Maryland, the city of Westminster and the town of
Hampstead have had to take their treatment plants off-service
because of samples collected with high measured levels of PFOAs
and PFOS.
So, we see this directly, and we recognize that we are in
desperate need of having a national standard based upon best
science. We know the risk factors. The good news from the point
of view of congressional support, it is bipartisan, it is
strong, and we are prepared to put up resources necessary to do
the remedial work, as is obvious in the bipartisan
infrastructure bill.
So, I appreciate your sense of urgency, and I just really
want to underscore the point on timing. I recognize you have to
get it right; I understand the process issues require an
orderly process where you have input. But if we continue to
delay these issues being regulated appropriately, it is going
to be even more challenging in the future.
So I just want to first urge you to move these issues as
quickly as possible. I know you are going down several tracks,
according to the game plan that you laid out. Some are a little
bit more ready to move than others. But if you could just share
with us your time schedule that you see as realistic in order
to implement your plan.
Ms. Fox. On the drinking water standard?
Senator Cardin. You can do drinking water. You also, I know
there are other parts of your program.
Ms. Fox. Absolutely. So, one thing that we did with the
roadmap, Senator, is put anticipated timelines on all of the
actions, and ongoing. For example, we just, on Monday,
announced our PFAS testing strategy, and the first test orders
are going to be coming out in a matter of weeks. It is imminent
that we are going to be releasing a Gen-X toxicity assessment
and follow that on with a health advisory.
So we are really firing on all cylinders, and across all of
our media offices to make progress on things, delivering in the
short-term as well as long-term.
On the drinking water standard, I just want to reiterate
the need for urgency that you just spoke of, that Senator
Capito just spoke of. It is one of the keystone rules that we
have to put in place during Administrator Regan's tenure, and
we are very focused on that. We are moving quite rapidly with
building the foundation for that rule. We just started, we did
a nomination for the small business participation just
yesterday. The Science Advisory Board is going to be meeting by
the end of the year, and as I said, we are on track to propose
the rule by this time next year.
Senator Cardin. Let me ask you about your partnerships with
States in dealing in this roadmap with support for fisheries
and seafood safety. In Maryland, we have taken considerable
strides to better understand the incurrence of PFAS in fish
tissue, oysters, and crabs. Do you have in your roadmap working
with our States so that we can advance the science necessary to
understand the risk factors and the remedial actions necessary
in regard to our safe food stock?
Ms. Fox. Absolutely. We are going to be working very
closely with States and Tribes, our co-regulators in building
out the actions in this roadmap. ECOS, which is the
Environmental Council of the Environmental Secretaries from
across the Country, they are a partner in these efforts with
us. The truth is, as you know, Senator, there is a number of
States who have been leading when the Federal Government hasn't
done enough. So that partnership with the States is going to be
critical.
I am so glad that you asked about the fish tissue issue.
There is a number of things that we are doing on that front. We
are basically in the process of developing ambient water
quality criteria, which is essential for States and Tribes as
they are setting water quality standards around PFAS. We also
are doing a lot of work around fish advisories, because our
early sampling in places like the Great Lakes show that there
is some level of PFAS in nearly every fish sample.
So we are also working to build out the science and the
information that States need and Tribes also need to do these
fish advisories, which is, of course, really critically
important for subsistent fishers, for the seafood industry, as
you mentioned, as well as for our Tribal nations, who consume
larger numbers of fish.
Senator Cardin. Well, we look forward to working with you
on that. I think partnering with our States is going to be
critically important, particularly on the fish stock.
Thank you, Mr. Chair.
Senator Carper. Senator Cardin, thank you so much for
joining us, and for your leadership on this and other issues,
as well.
Just to run briefly through the ordering of questions, it
looks like the next person up is Senator Cramer, Senator
Whitehouse, Senator Boozman, and Senator Duckworth, by WebEx.
So, Senator Cramer, take it away.
Senator Cramer. Thank you, Mr. Chairman, and thank you, Ms.
Fox, for being here and for your service. It is great to see
you again.
I am going to maybe steer this a little bit along the same
path that Senator Cardin was just talking about and that you
were talking about in response to his very specific question,
and that is, you referenced your co-regulators, State and
Tribal regulators. I am just going to draw a little bit of an
illustration and let you expand on it.
I think the EPA first came into North Dakota in 2013, 2015,
did some baseline sampling. Basically, they didn't find any
PFAS, at least of the six most prominent, most often present
chemicals. Then in 2018, the North Dakota Department of
Environmental Quality did a much larger baseline survey and
certainly found some, but again, very minor, nothing really
that affected drinking water significantly or really in any
dangerous way. There were a couple of fire safety sites or
training facilities, but again, they cleanup, and we are
blessed with a geology that protects the water table pretty
well, so all in all, things are pretty good.
I draw that little bit of an illustration because many of
our water systems, like many of the members here, of course,
are rural water systems, not a lot of financial resources,
spread out population, a chemical that largely doesn't exist or
barely exists.
So, as you are doing the roadmap, I was heartened by, like
I said, what you just said to Senator Cardin, and maybe if you
could just expand a little bit on that relationship with Tribes
and States and how to craft rules that aren't overly burdensome
to particularly rural systems that, if needed, I guess we could
help finance. But we don't want to burden them if it is
unnecessary.
Just talk through that a little bit with me about how you
see that relationship working out.
Ms. Fox. Absolutely. It is good to see you, Senator Cramer.
I think one of the best tools that we have as we think very
thoughtfully about partnering with our co-regulators, the
State, is the leadership that Administrator Regan brings. As a
State environmental regulator, he is very attuned to the
importance of being in partnership with the State, not telling
States what to do, but figuring it out together. We are really
aspiring to do that, not only in our PFAS work, but in all of
the rules that we are undertaking at EPA.
With each of the actions that are regulatory in nature in
the roadmap, whether it is the CERCLA hazardous designation or
the drinking water standard, we will have ample and robust
dialog with States. We have formal consultations with States
and Tribes on each and every one of these rules. We have to
make sure it is meeting the very diverse needs of States across
the Country.
So you certainly have Administrator Regan's commitment, my
commitment, to do that, both in PFAS, but again, in all of the
things that we are doing at EPA.
Senator Cramer. Speaking as a former State regulator, I
find that background of Administrator Regan's to be one of the
more endearing qualities, and he has got lots of them. But we
regulators don't often talk endearingly about one another.
[Laughter.]
Ms. Fox. I will make sure to let him know you said that.
Senator Cramer. I appreciate that. Along the same theme
then, let us talk just a little bit about WOTUS, since we have
a minute and a half left, because it is kind of the same lines.
I know you find yourself one rule, then not, and then a new
rule, and then not, and the NWPR, which we in North Dakota
thought was a pretty good rule, not perfect, but pretty clearly
defined the role of States and the role of the Federal
Government and encourages everybody to stay in their own lane.
But now we are on the path to what you like to call a more
durable rule, perhaps, and I think we would all like a more
durable or sustainable rule that doesn't have to get ping-
ponged between administrations and courtrooms. That said, maybe
just talk a little bit about, and thank you for your commitment
to come out to my little State and talk to some people that
deal with a very diverse landscape as it relates to water and
WOTUS, talk a little about your approach, now that you are
partway through this discovery process in coming up with a new,
permanent rule.
Ms. Fox. Absolutely, and I am looking very much forward to
the visit as well. My approach, my position on Waters of the
United States hasn't changed since I was last before this
committee. We have, over the summer and early fall been doing
very robust engagement, pre-publication engagement, around
Waters of the United States.
As I think we have described in other settings, we are
still moving forward with the two-step rulemaking process. The
first rule is a rule to promulgate the kind of pre-2015
regulations, and then we will move forward with the second rule
to build on that foundation.
Of course, Senator, the landscape continues to change
around Waters of the United States, as we, Army and EPA,
continue this work. Two district courts in Arizona and New
Mexico have both vacated the Navigable Waters Protection Rule.
So based on those two court decisions that the concerns that
those two courts had, we have instructed both the EPA regional
offices as well as the Army district offices to move forward
with implementation of that 1986 regulatory regime. That is
currently what the law of the land is until we move forward
with our rulemaking.
We do anticipate proposing that step-one rule before the
end of the year, by the end of 2021. When we propose that, we
will again do ample and robust stakeholder engagement in North
Dakota and really, around the Country.
Senator Cramer. I look forward to that. Thank you very
much.
Thank you, Ms. Chair.
Senator Capito.
[Presiding.] Thank you.
Senator Whitehouse.
Senator Whitehouse. Thank you, Senator Capito, and welcome,
Ms. Fox. I am glad you are back with us again.
I wanted to just flag Rhode Island's situation for you, as
we have a moment here together. In 2019, our Department of
Health tested every major drinking water supply in the State,
and the water in every school that had its own well. We still
have a lot of well supply in Rhode Island.
Eighty percent of Rhode Islanders, through this process,
had their primary source of water tested, so it was pretty
comprehensive. PFAS chemicals were detected in 44 percent of
the locations tested. Drinking water serving 14 different Rhode
Island cities and towns, like North Providence and Pawtucket,
Newport, Cumberland, and South Kingstown, tested positive for
PFAS at levels that have already been declared unsafe under the
standards of neighboring States.
Elevated levels were detected in school water systems, in
Foster, in Glocester, in North Smithfield, in Scituate, and at
our wonderful University of Rhode Island. PFAS contamination
was, perhaps, unsurprisingly also found at Naval Station
Newport.
We are now following Federal guidance by requiring people
to avoid drinking water that has PFOA or PFOS in levels above
70 parts per trillion. Massachusetts sets that limit at 20
parts per trillion combined for six of the most common PFAS
compounds, and Vermont also sets the limit of 20 parts per
trillion combined for five PFAS compounds.
So, our Department of Health has begun work on its own PFAS
regulations and is working on drafting our State level drinking
water standard.
In February, our Department of Environmental Management
signed on to a letter with other State environmental agencies
in New England, highlighting for you specific efforts that the
EPA could take to help Federal, State, and local governments
address PFAS, including expanding maximum containment level
rules beyond PFOA and PFOS, regulating PFAS as a class,
developing guidance for disposal of PFAS products, and
recognizing stricter State--level standards where they exist
compared to Federal standards.
I would ask you to please review that letter, and it would
be helpful if you could send me an updated reply as to where
you all are with respect to the various proposals to you that
the States have made.
Ms. Fox. First of all, Senator, happy birthday.
Senator Whitehouse. Thank you.
Ms. Fox. And, absolutely, I would be happy to follow-up
with a formal reply. I would also be happy to meet with some of
the stakeholders and leaders you just described in Rhode
Island. We would love to learn from their experience and make
sure we are getting what we do right. I am happy to commit to
doing that.
Senator Whitehouse. Great. Look forward to it. Thank you.
Keep going.
Ms. Fox. Thank you.
Senator Carper. Thanks, Senator Whitehouse. Again, thanks
for letting us share your birthday, a special day, with you.
Next, Senator Lummis. Thank you for your patience, and
thanks for joining us.
Senator Lummis. No, thank you, Mr. Chairman. I appreciate
it.
Welcome, Ms. Fox. Senator Cramer and I, before he walked
out of the room, were talking about how grateful we are that we
don't have nearly the PFAS issues identified that Senator
Whitehouse just mentioned exist in his State. I think it is a
perfect example of why federalism works so well.
According to the Environmental Council of the States,
States have assumed more than 96 percent of the delegable
authorities under Federal environmental laws. So concerning
PFAS, there is no reason States can't or shouldn't lead on
research and regulation. Senator Whitehouse just mentioned that
his State certainly is doing so and has identified many issues
in his State that do need to be addressed.
In this area and in a lot of areas at EPA, working with the
States, the concepts of federalism seem to be the best path,
the workable path going forward. So I just want to implore EPA
to see the States as partners and work with them and to accept
their leadership in a lot of areas where they are well-
positioned to lead.
I, too, like Senator Cramer, want to raise the issue of the
Navigable Waters Protection Rule while we are here, because
that is the more concerning issue in my State, as it is in his
State of North Dakota than, quite frankly, the PFAS issue is.
So, one of my concerns about it is the amount of delay we have
seen coming from the agency on oversight requests for
information on the repeal and replacement of the Navigable
Waters Protection Rule.
For example, it took the agency 9 weeks to provide this
committee with a briefing on the rationale underlying the
agency's decision to take these actions. That delay causes
States like mine a real heartburn, and we are concerned about
transparency that we think is not evident with regard to the
times involved in this. I just want to alert you that we have
great concerns about the replacement of the Navigable Waters
Protection Rule, and we very much want as much information as
we can get.
Now, do you agree that 9 weeks is too long for this
committee to wait for a briefing on this issue?
Ms. Fox. Senator, thank you for sharing your concerns
around delays in responding to oversight requests. I don't
manage that for the EPA, and so you have my commitment that I
will take that concern back to Administrator Regan and to those
at EPA who manage that and see if we can act more quickly. Of
course, we have so many things we are juggling, but we will be
more mindful of that moving forward.
I just also wanted to appreciate your comments about
letting the States lead and really partnering with them so that
we get these regulations right. I could not agree with you
more, and I would say that it really is the obligation of the
EPA to protect public health and safeguard the environment by
establishing Federal floors for things. So much of what we are
trying to do with this roadmap is to establish a Federal floor
of protection for people who have been suffering far too long
from PFAS contamination. We fully expect that other States will
go farther than us, and they should, and they should lead, and
we will learn from them. It will, I think, be a very virtuous
cycle of partnership between States and the Federal Government
moving forward.
Senator Lummis. Well, thank you. I think the illustration
of big differences between States and dealing with issues and
having it be an issue for each of us would argue for having the
States take a strong leadership position, and then ask for
assistance from the EPA when necessary. Certainly, in a lot of
areas, the EPA is well-equipped to help the States fulfill
their roles in this area, as well.
I want to return, and I know this isn't your area, but I
hope that you will take back with you Wyoming's concern about
changing the Navigable Waters Protection Rule. On a briefing
call, staff stated that there actually have been no observed
and documented significant environmental damage or ongoing
environmental harm stemming from the implementation of the
Navigable Waters Protection Rule, and because of that, we don't
even understand why you want to change it, why the agency wants
to change it. It seems to be working well, and we have concern
that we are going to be taking a step backward with regard to
changes with this rule.
Are you aware of any significant environmental damage or
ongoing environmental harm stemming from the current
implementation of the Navigable Waters Protection Rule that has
been observed either by EPA or the Army Corps of Engineers?
Ms. Fox. Senator, the Navigable Waters Protection Rule is
no longer the definition of Waters of the United States. It was
vacated by two district courts. We are currently implementing
the regulatory regime pre-2015. So courts have found that the
Navigable Waters Protection Rule had significant concerns, and
that is why they took that action.
Senator Lummis. Did they take the concern because they felt
that it was inadequately implemented under the rulemaking
authority, or because the rule was inadequately actually
protective of waters? Do you know which it was? Was it
procedural, or was it substantive?
Ms. Fox. I would be happy to have our Office of General
Council brief you more fully on those two court decisions, if
that would be of interest to you, Senator.
Senator Lummis. It absolutely would, and I very much
appreciate the offer, and I will take you up on that.
Ms. Fox. OK, thank you.
Senator Lummis. Thank you, Mr. Chairman. I really
appreciate it.
Senator Carper. You bet. Thank you for your willingness to
do that. We are grateful.
Ms. Fox. Absolutely.
Senator Carper. I believe Senator Duckworth is ready to
join us on WebEx. Senator Duckworth, if you are there, please
join us.
Senator Duckworth. Thank you, Mr. Chairman.
I just want to start off by associating myself with
comments from Senator Inhofe about the concerns that airports
have for being held liable for use of PFAS in AFFF retardants.
By the way, Mr. Chairman, I think no other Senator has as much
flight time that is as slow and as low to the ground as I do.
All of you guys are all jet jocks.
Senator Carper. There are a lot of record-holders here, you
know?
Senator Duckworth. If you want to go very slowly and at 300
feet or less above ground, I am your gal.
[Laughter.]
Senator Carper. All right.
Senator Duckworth. Mr. Chairman, as Chair of the Water
Subcommittee and a fellow founding member and co-chair of the
Senate's first Environmental Justice Caucus, I commend your
leadership in making sure our committee pays as much attention
to upgrading our Country's unseen infrastructure as we provide
for the resources for fixing our roads, bridges, and rail.
I am proud that, working together, we have secured record
funding levels for water infrastructure across a bipartisan
infrastructure bill, including more than $10 billion dedicated
to PFAS cleanup. These historic investments would deliver
significant benefits to low-income communities, in particular,
rural areas as well, and communities of color. It will help
right the past wrongs of allowing our military families and
industrial communities to bear the brunt of toxic chemical
dumping.
Administrator Fox, now that your team has put forward the
most comprehensive PFAS plan in EPA's history, could you
address how preserving the robust water infrastructure funding
in the bipartisan infrastructure bill and the Build Back Better
Act would enhance EPA's ability to provide clean, safe,
reliable water for all Americans?
Ms. Fox. Yes, thank you, Senator, for the question.
We are very excited by the comprehensive nature of the
roadmap, and we were really intentional about identifying what
we can do with our existing resources.
But the bipartisan infrastructure package in the Build Back
Better Plan would be a game-changer in our ability to address
PFAS. For example, the $10 billion that is proposed in the
bipartisan bill that this committee led the development of and
passed through the Senate, I mean, that $10 billion would be a
game-changer for communities and being able to do cleanups,
making sure drinking water and wastewater systems are safe and
PFAS-free. So those dollars are essential.
But beyond the resources for PFAS that are in that
legislation, the rest of the resources that would be going to
building and re-investing in our drinking water and wastewater
systems, removing lead service lines, really retiring them so
that communities have lead-free water, all of these things are
desperately needed in our communities. Communities have been
waiting too long for these investments. What I can say is,
under Administrator Regan's leadership, we stand ready to
steward these resources, if passed by Congress, safely,
responsibly, efficiently, to again, support our communities in
living the healthiest lives possible.
Senator Duckworth. Thank you.
I want to return to the firefighting use of aqueous
firefighting foams that contain PFOS and other PFAS, long-chain
PFAS. We have known for decades that these are a dangerous risk
to public health. Despite this knowledge, we have continued to
use these harmful foams to put out industrial fires. In the
process, they have now seeped into our ground.
We have been talking about this all morning, but most
Americans don't know that we are still using them. In my home
State of Illinois, AFFF has been used in three separate
incidents in just the last several months. This includes a
battery storage fire, where AFFF was used for hours until EPA
was finally consulted and advised that they should stop using
AFFF immediately and procure non-PFAS foams.
Just last week, 50,000 gallons of AFFF were dumped at the
Sugar Camp Coal Mine, and now the local area has contamination
levels of serious concern.
Of course, Illinois is not alone in this. AFFF represents a
national public health threat that touches upon the three core
components of EPA's PFAS roadmap.
Ms. Fox, can you address how implementing the roadmap's
three central directives will enable us to proactively prevent
the use of PFAS foams, making sure that we strengthen the
cleanup efforts in communities where this foam has already been
used, and also support research and development to promote non-
PFAS firefighting foams and other alternative technologies?
Ms. Fox. Absolutely, Senator. We are doing our part at the
EPA to help transition away from these firefighting foams that
have PFAS in them, as well as supporting remediation cleanup.
But this is really an area where we need a whole-of-government
approach to really solve this issue. FAA and DOD are also
working very hard on this issue.
But because we need a whole of agency approach, the White
House, just this week, announced that under Chairman Brenda
Mallory's leadership, there is a Deputy Secretary-level
interagency council. We really view the council as a place for
this type of cross-agency challenge to be solved together.
So this is a priority for us; it is a priority across the
administration, and we are really looking to make rapid
progress moving forward.
Senator Duckworth. Thank you so much. I yield back, Mr.
Chairman.
Senator Carper. You don't have to yield back, but thanks so
much for coming. Thanks for the insights that you have offered.
We have been joined by Senator Stabenow, but before her, is
Senator Mark Kelly. We have been talking a lot about PFAS,
especially with respect to firefighting foams today, something
you know a lot about. Mark, thanks for joining us.
Senator Kelly. Thank you, Mr. Chairman. Yes, in my early
days in the Navy, I spent time with the hose and the AFFF,
putting out fires for training, not realizing at the time that
chemical was going to do so much harm to groundwater across the
Country. So, that is what I want to talk about, the PFAS issue.
Thank you, Administrator Fox, for being here today. It was
great talking to you last week and seeing you again.
As you know, Arizona is in the midst of an historic
drought. In August, the Bureau of Reclamation declared a tier
one shortage on the Colorado River, cutting back Arizona's
allocation of Colorado River water for the first time ever.
While Arizona has spent years making investments to prepare for
this, to prepare for the tier one shortage, recent hydrological
reports indicate that in the not-too-distant future, we could
quickly get to tier two or even tier three, those shortages.
This would prompt significant cuts for communities
throughout our State. If these cuts are triggered, communities
in Phoenix and in Tucson and the surrounding areas may have to
rely on their secondary source of drinking water, which is
groundwater.
Yet, as you know, there are significant and growing PFAS
plumes in aquifers both in Phoenix and in the Tucson
metropolitan areas. These competing challenges makes
remediating the PFAS plumes in Arizona's aquifers an urgent
priority.
That is why I fought to include $10 billion in the
bipartisan Infrastructure Investment and Jobs Act for PFAS
cleanup efforts. While the House still needs to pass the bill,
I wanted to ask you today about EPA's plan for quickly getting
this much-needed funding out to States if and when the bill is
signed into law.
Administrator Fox, what can you share about the work your
office is doing to prepare to quickly allocate funding provided
for PFAS cleanup in the infrastructure bill?
Ms. Fox. Thank you, Senator Kelly, for that question. So,
absolutely, if and when the infrastructure bill is passed, EPA
is ready to go. We are having conversations with States. A lot
of the infrastructure money will flow by formula, through the
SRF formula to States. So we are working actively with States
to really understand what might be their challenges, how do we
anticipate and plan for them, how do we make sure projects are
ready to go, especially with these carve-outs for the $10
billion for PFAS and then the carve-out for lead.
So we are ready to act quickly. We know communities
desperately need these resources to ensure that they have safe,
clean drinking water and reliable wastewater service.
I also just want to underscore, Senator, that the story
that you just told about Arizona is so sobering to me because
it shows us all of the unintended consequences of decisions
that we make and why we actually need a more one-water
approach. The fact that this drought situation may leave
communities in Arizona to rely on groundwater that is
contaminated with PFAS, I mean, that is just awful, right?
So, we really need to be attuned to the interconnected
nature of these water challenges. It is why Administrator Regan
has charged us with our PFAS roadmap to use every statutory
authority to bring our funding and financing programs to bear,
not tackle it one PFAS at a time, one chemical at a time, or
one exposure pathway at a time.
So you certainly have our commitment at EPA that we are
ready to act. We are ready to steward resources wisely to
communities, and that we really want to bring a more
integrated, comprehensive approach so that as we make future
decisions on water management, it doesn't create yet another
unintended consequence.
Senator Kelly. Right. Thank you for that, and that is going
to help.
When we talk about where Arizona is going to be in two to 3
years, the storage, the water in Lake Mead went down 10 percent
in a year, and it is at 30 percent. Arizona gets 40 percent of
its water from the Colorado River. It is at 1,067 feet above
sea level. When it gets to a 1,050, which is possible in a year
or two, then we are in tier two. Then we are in a situation
where we have to rely on groundwater for drinking water and the
PFAS plumes.
The one in Tucson, by the way, got so significant that the
facility to take the PFAS out of the water was just overwhelmed
by too much PFAS. It couldn't do it and had to shut down.
So I appreciate the Administrator's focus on this. It is
critically important that we get these funds as soon as the
bill is passed, that we get these funds to Arizona to start
this remediation. Thank you.
Senator Carper. Senator Kelly, thanks so much.
We have been re-joined by Senator Joni Ernst, and I am
going to yield to you now, and then once you have asked
whatever questions you would like to, then Senator Stabenow
will ask her questions, and she will do it with the gavel in
hand, unless Senator Capito comes back and wrestles it away
from you.
Thank you, and I am going to run and vote, and if you would
just preside in my absence, that would be great. Thank you.
Senator Ernst, thank you.
Senator Ernst. Yes, thank you, Chairman Carper. Thank you
very much.
Administrator Fox, we are already seeing broad and costly
policies implemented by the Administration on an unjustified
basis. They are increasing energy costs on American families;
they are harming out international economic competitiveness,
and they are placing unnecessary burdens on our Nation's
taxpayers.
We seem to be seeing a lot of this coming out of the EPA as
well, with a huge target on agriculture. I have continually
fought for our farmers, and I am afraid we are now back in the
same fight that we had over Waters of the United States. I know
that you are coming out with a proposal here in the upcoming
weeks, and I am concerned that what we may see will just be a
return to the harmful policies we saw under the Obama
administration.
Now, the EPA has told this committee and our staff during a
briefing that you would not be removing the exemptions for
prior converted croplands. Are you able to confirm that?
Ms. Fox. Yes.
Senator Ernst. OK. I appreciate the smart decision, I do.
I am very concerned about other provisions that we have
seen used by the Obama administration against our farmers, and
since you were able to confirm the details about prior
converted croplands, you should be able to tell us what other
ag-related implications or elements we should expect to see.
Do you have some of those that you could detail with us
today?
Ms. Fox. Senator, I cannot prejudge the outcome of a
rulemaking. We will be proposing our Waters of the United
States step 1 rule. We anticipate, by the end of the year,
there will be ample engagement with the agricultural community,
with your State, with a range of stakeholders through the
formal process.
Senator Ernst. Yes, and I appreciate that, because we will
need to have that stakeholder engagement to make sure that we
are not putting in place policies that would further harm our
farmers and our ranchers, and again, I just want to reiterate
my huge concerns with the Obama-era Navigable Waters, or Waters
of the U.S. Rule.
I know that Senator Lummis also was asking about the repeal
of Navigable Waters. I would like to go back to what she was
discussing, and the issues that were raised on WOTUS or the
claims that you and others in the administration made about
environmental damage and harm that was cause by the Trump
Administration's Navigable Waters Protection Rule.
That is not really anything that our farmers are seeing on
the ground, and I have not seen any data from the EPA or the
Corps that shows the Federal Government has documented any of
this damage and harm. So I think for Senator Lummis and I, we
would like to see evidence of that, rather than just a
hypothetical. It is an assumption, and your basing an
unnecessary repeal and a rewrite of the rule on information
that has not been provided to any of us.
Can you confirm that the EPA has documented evidence of
actual environmental damage or harm that was caused by the
Navigable Waters Protection Rule?
Ms. Fox. Senator, I am happy to share with you the Army
Corps' data, which is publicly available. I can share that with
you. I do want to also just reinforce that two district courts
have vacated the Navigable Waters Protection Rule, because they
felt it had significant concerns with the rule and its
consistency with the ultimate objectives of the Clean Water
Act.
So we are now trying to look forward and develop a rule
that is fair, that is balanced, and that is durable. We think
the ping-pong that has happened for far too long on Waters of
the United States needs to stop. That is really Administrator
Regan's and my priority, as we undertake this rulemaking.
We have, I think, time and again been illustrating our
commitment to listen to all sides, to hear the divergent
perspectives from regions across the Country. In fact, just
last week, we announced a call for hosting 10 regional
roundtables. We would love if folks in Iowa would propose for
one of those regional roundtables to be in Iowa, so that we can
dig in more deeply.
But I think from the day Administrator Regan has taken
office, he has committed to listening to all sides, and we have
been doing that consistently with the agricultural community,
and we will continue to do so.
Senator Ernst. Yes, and I appreciate that. I think that we
would be more than happy to host one of those roundtables in
our great State of Iowa, because the Navigable Waters
Protection Rule is one that was put in place, it was greatly
appreciated over the past administration's WOTUS Rule.
But again, what we want to see is the evidence, not just
that we have had a couple of courts that have said we should
vacate the rule. But we want to see the evidence, because EPA
is claiming that there was actual environmental damage caused
by the Navigable Waters Rule, not just that they have vacated
the rule. But we want to see that evidence, so I hope that as
we do these roundtables and we are able to have a dialog, that
evidence is presented.
Thank you very much.
Senator Stabenow.
[Presiding.] Well, thank you very much, Assistant
Administrator Fox. I appreciate you and the Administrator
reaching out, certainly, in Michigan, and the efforts to really
listen to all of our residents in every part of the economy in
Michigan.
As a State that is surrounded by water, there are so many
issues that I could ask you about today. But I want to
specifically focus on PFAS, and thank you for your leadership
and the leadership the EPA is showing.
As you and I have discussed, Michigan has had significant
challenges when it comes to working with the Department of
Defense to address PFAS contamination on and around our
military bases. PFAS has been detected on at last 10 bases in
Michigan. At one base, we had readings as high as 32,200 parts
per trillion, which is huge.
At some of our bases, such as Wurtsmith and Camp Grayling,
we have PFAS migrating off the base and into lakes, other water
bodies. I have seen PFAS-contaminated foam floating across the
lakes. It is terrible what is happening; it is really
frightening.
On July 22d, 2020, the State of Michigan finalized its own
drinking and groundwater standards for numerous PFAS. It is my
understanding that current law is clear: in the absence of
national drinking and groundwater standards, the Department of
Defense is required to comply with State standards.
Unfortunately, it doesn't seem that the Defense Department
interprets this statute the way that we do, that I believe that
it should be interpreted, and I have had trouble getting a
straight answer.
Let me ask you: do you agree that Federal statute requires
the Department of Defense to comply with State drinking and
groundwater standards for PFAS if Federal standards don't
exist, or a State has more stringent standards than the Federal
one?
Ms. Fox. First of all, Senator Stabenow, I just share your
concern around PFAS, and the people of Michigan have been
suffering because of this contamination, and they have waited
far too long for a good Federal partner to walk with the State
on addressing some of these issues.
I cannot speak for the Department of Defense, but what I
will say is that we are doing everything we can at the EPA
through this roadmap to restrict new PFAS from entering, to do
our part in supporting remediation. We are in regular dialog
with the Department of Defense on areas of collaboration. I
will take this back to the Assistant Secretary that I work with
at DOD to share this.
I spoke about it a little while ago, but one thing that we
are incredibly excited about as well is that, on Monday, the
White House Council of Environmental Quality, under the
leadership of Chair Mallory, has launched an interagency effort
around PFAS, and it is the Deputy Secretaries across the
agencies that are engaged in that. So I will share this there.
I also want to say that, as the EPA moves forward with our
actions under our authority, we are going to be putting a much
stronger Federal floor in place through setting a drinking
water standard, by moving forward a rule for CERCLA hazardous
designation. Because States have for far too long not had a
Federal floor when it relates to PFAS. It is people's health
that has suffered. So you have that commitment from me moving
forward, Senator.
Senator Stabenow. Well, I appreciate that. I really
appreciate what the White House has announced, and again, the
outreach efforts in Michigan around these issues, as well as
the steps that you are taking with the EPA in terms of PFAS,
including hard timelines for completing drinking water and
cleanup standards.
Our difficulty is that Michigan has taken the lead, stepped
out, because we have so many contaminated sites, and we have
the standards in place. We made sure that it was clear that if
there are standards in place, that the DOD sites need to follow
those. So while you are doing the great work to finalize your
rules, we have a great sense of urgency about this.
I have one other quick comment. I know I am running out of
time, but I do need to just ask quickly about the lead
situations in Michigan. I was deeply involved still, and I am
with the people of Flint and the horrors around not being able
to drink the water because of lead. Now we have other
situations occurring, including a very important community in
Benton Harbor, where we have had very troubling details emerge
about high lead levels, dating back now to 2018.
The Governor has stepped in and is moving forward on a
number of things, and they have done an October 6th decision to
recommend bottled water for cooking and drinking and so on. But
I wonder if you could just speak for a moment on how the EPA is
working with the city and the State to address lead
contamination in the near and long-term, because this is such a
serious issue.
Ms. Fox. I completely agree with you. We are very concerned
about the lead exceedance levels in Benton Harbor that have
been, as you said, Senator, going on for some time now. So, we
are really spending a lot of time and focus on this issue, both
in the very near-term. We have been working closely with the
State and with some of the community groups on that bottled
water distribution that the State has recently begun, as you
just said.
We are providing oversight over that bottled water
distribution. We have asked to see their plans; we are
providing technical assistance as we can. The EPA is also
supporting a filter study that has three parts to it, and so we
are proceeding with that.
Senator Stabenow. Let me ask on that one point, because
have you gotten any results yet in terms of analyzing whether
the water filters that were previously given are working? Do we
know?
Ms. Fox. The study that we are doing is moving forward. So
we are going to, in the very near future, do sampling in about
300 homes to get a baseline, and then there are some follow-on
filter studies that we will be doing. They will be happening
within weeks. We are happy to kind of loop back with your
office to share the findings of that. So EPA is investing and
undertaking that filter study.
In addition, we have been working closely with both the
city and the State reviewing their data and around the
corrosion control, looking at the studies around water
chemistry. Really, we have kind of unleashed all of our
technical experts within headquarters to help. We also did a
recent inspection of the water system in Benton Harbor, and
that report should be ready soon. We would be happy to brief
you and your office on that.
Please know that we are making this a top priority to
collaborate with the State and the city and the community
organizations there. The situation is serious, and we have to
bring all of our resources to bear.
Senator Stabenow. Absolutely, and I appreciate also the EPA
grant we were able to bring in for $5.6 million to begin
replacing, obviously, the lead pipes in our bipartisan
infrastructure bill, our Chairman is back, all of his
leadership and members of this committee. We certainly have
dollars there, but from a community standpoint, when you have
to drink water every day and cook with water every day and all
the exposures and so on, the sense of urgency couldn't be
higher for what needs to happen. So I look forward to working
with you.
Mr. Chairman, I am handing the gavel back to you.
Senator Carper.
[Presiding.] Senator Stabenow, you are doing double duty.
She not only chairs the Agriculture Committee, she is going
from this committee to Finance Committee and filling in for
Senator Wyden. I don't know, we are going to have to pay her
three times for this day. Thank you so much for chairing.
I have maybe two more questions, and I don't think anyone
else is coming back, as far as I can tell, from our members.
This is maybe the best question I will ask today, and that is:
how can Congress help? How can we help? I want to ask you to
make us a guided missile, if you will.
I really appreciate your spending the time with us today
and providing some of the details of the roadmap that you and
your colleagues have been working on, and I am encouraged that
the agency is giving what is a real critical health threat in a
lot of our States the close attention that it has deserved and
certainly deserves going forward.
Virtually all Americans, whether they know it or not, are
exposed to PFAS substances, which never break down, and they
tend to accumulate, as we know, in the tissues of living
things, including all of us. This is truly, I think what you
presented is, my staff described as a soup-to-nuts plan, which
is nicer than they have described some other plans that we have
received on other issues. I can appreciate the amount of work
that it will take to get all this work done.
Just tell us what the Congress could do, ideally, what we
could do to help EPA succeed with this effort, either through
legislation or maybe additional resources, please.
Ms. Fox. Thank you for the question.
Senator Carper. You are welcome.
Ms. Fox. So, I would say there are three ways that Congress
could be invaluable. One, as you know, Senator, EPA was
eviscerated during the Trump Administration. We lost a thousand
career staff, science and intellectual capacity that we have to
rebuild. So the kinds of investments in EPA that are proposed
in the Fiscal Year 2022 budget are just the kind of things that
we need to help build back the EPA, so those resources to
rebuild the very foundation of our agency.
Two, passing the infrastructure bill that this committee
led would be invaluable. The $50 billion investment in water
would be historic for communities across America, and that $10
billion proposed for PFAS would be a huge down payment on
getting our drinking water systems, our wastewater systems,
clean and safe and PFAS-free.
Senator Carper. How much was that again?
Ms. Fox. There was $10 billion for PFAS. Then the third is,
I know this committee is contemplating future legislation on
PFAS. There is the PFAS Action Act from the House. So as PFAS
legislation moves, we would love to be in discussion with
Congress about additional authorities, statutory authorities
that might enable EPA to go faster.
When we wrote this roadmap, when we put the commitments
that we have made in this roadmap down, the charge from
Administrator Regan was, use every statutory authority that you
currently have. That is what we are trying to do with this
roadmap. But there are places where Congress, through
additional authority, could help us move faster, and we welcome
that dialog with you moving forward.
Senator Carper. Great. Thank you. I think this would be the
last question I have, and maybe the last question of this
hearing. As you know, many communities across our Country have
suffered a whole lot by being continuously exposed to PFAS in
their environment, in our environment.
One example, it comes from the 49th largest State, that
would be the second smallest. We are really small. Every one of
our three Delaware counties, we only have three counties, most
people live up north in New Castle County, and Kent County is
where Dover Air Force Base is, in the middle, and then Sussex
County is one of the largest counties in America. We have a lot
of chickens, not many people.
Anyway, small State, three counties. Every one of our
counties has been plagued by the presence of PFAS in our
drinking water. A key component of EPA's roadmap involves
holding polluters accountable through enforcement, and
according to the roadmap, anyone who causes PFAS contamination
will be held responsible for cleaning it up and for preventing
future releases. Please tell us why enforcement is an essential
component of the roadmap and how EPA plans to hold polluters
accountable.
Ms. Fox. Well, thank you for the question, Senator Carper.
Senator Carper. You are welcome.
Ms. Fox. When I hear the story you just told about
Delaware, the thing that really saddens me is this is what
communities around the Country have been suffering from for too
long. They have been caught holding the bag for contamination
that industry or other facilities have created, and they need
help.
That is why Administrator Regan has said loud and clear,
enforcement is back at the EPA, and that if we see that
contamination exists and that there is imminent and substantial
danger to communities, we will use our enforcement authority,
our current enforcement authorities to act. It is also why one
of the linchpin strategies in this roadmap is moving forward,
at long last, with a rule to designate PFAS as a hazardous
substance under CERCLA. Because States need that tool, we need
that tool, to hold polluters accountable. That is what this EPA
is going to be about, moving forward.
Senator Carper. OK. Almost every member of this committee
has participated in today's hearing. It gives you an indication
of just how important it is, not just to the first State,
Delaware, and not just to my native State and Senator Capito's
native State, West Virginia, but the entire United States.
We are looking for some action and looking to be a good
partner with the agency. You made a good point about the
resources, making sure you have people prepared, trained, and
so forth, with good leadership. Part of our responsibility is
to provide the money for the resources and when we have good
nominees from the Administration, like you, to be able to get
you confirmed and at work in a hurry.
I want to close by just asking one last question. This
would be a question from you. Is there a question that you wish
had been asked, but you haven't been asked? A question you wish
had been asked, but have not been asked. Go ahead, think about
that.
Ms. Fox. No.
Senator Carper. Hillary Clinton was once asked this
question, I think when she was Secretary of State, and she was
being asked to testify before the House of Representatives.
Democrats were the minority, and the hearing lasted forever.
After about five or 6 hours, she was asked the same
question by one of the members: is there a question you haven't
been asked that you wish you had been asked, and she said, I
wish someone had asked if I needed a bathroom break.
[Laughter.]
Senator Carper. I thought that was pretty good, on the spot
like that.
Ms. Fox. Yes.
Senator Carper. Do you want to ask the last question of
yourself, and give us a good answer? If not, we will wrap it
up.
Ms. Fox. No, I just want to say, on behalf of the entire
EPA, thank you for your leadership, Senator Carper. You have
been such a good partner to the EPA as we are trying to move
President Biden's bold vision for the environment forward.
So just thank you, and thank you for the opportunity to
participate in this really important discussion this morning.
Senator Carper. Well, you are welcome, and thank you,
Administrator Fox, Radhika Fox, best name of any witness in
this Congress. We want to thank you for helping us to
understand better not just the goals, but the actions and the
timelines of EPA's strategic PFAS roadmap.
I was talking, again, with Shelley, Senator Capito, as to
whether or not the roadmap might bring you and your team
through West Virginia. I know they would love if that would
happen. It would be great if you could make it to the first
State, but West Virginia has, as you know, suffered hugely
through this.
We are grateful to learn how much we already know about the
threat posed by some of these PFAS chemicals, and we are also
encouraged that there are well-informed and rapid steps we can
take to address the worst of the risks we face while gathering
the knowledge we need to protect our environment, our families,
and our children over the long, long-term.
In the Navy, we have a term called all hands on deck. You
have heard it, I am sure, in any number of applications, but I
also appreciate that this is all hands on deck opportunity.
Maybe I should say not just opportunity, but a necessity, a
necessity. We look forward to working with you, with your team,
with your EPA colleagues, as well as my Ranking Member, Senator
Capito, and every member of this committee, most of whom have
joined us today, either in person or virtually. We want to make
sure that we are doing our best to address the problems we
already face and to avoid the threats in the future.
Before we adjourn, I have a little bit of housekeeping to
do. I want to ask unanimous consent to submit for the record a
variety of materials that include records from stakeholders and
other materials that relate to today's hearing. Since I am the
only one here, I am not going to object to my unanimous consent
request, but I think will just say, without objection.
[The referenced information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Carper. Additionally, Senators will be allowed to
submit questions for the record through the close of business
on Wednesday, November 3d, that is Wednesday, November 3d. We
will compile those questions and send them to our witnesses and
ask our witnesses, in this case, our witness, to reply by
Wednesday, November 17th, please.
With that, I think we normally say the hearing is
adjourned. I will just say, it is a wrap. Thank you so much.
The hearing is adjourned.
[Whereupon, at 11:47 a.m., the hearing was adjourned.]
[all]