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The Insider

Congress Returns To Wrestle With Contentious Environmental Policies

House and Senate lawmakers will return next week from their August recess to wrestle with several contentious environmental policies, including which provisions dealing with perfluorinated chemicals to include in a key defense bill, questioning the Trump administration’s plans to roll back Clean Water Act (CWA) rules, and eyeing carbon mitigation measures.

On per- and polyfluoroalkyl substances (PFAS), both the House and Senate, which return Sept. 9, directed EPA and other federal agencies in their fiscal year 2020 defense authorization bills to take a number of actions to address pollution from the substances. But the provisions in each bill are significantly different, creating the potential for protracted conference negotiations.

While the congressional defense committees have yet to name their representatives for the conference committee to hash out a final bill, proponents and critics of various provisions have already begun their lobbying, including a bipartisan group of House lawmakers that comprise more than a third of that chamber.

Bipartisan House Coalition Pushes For Controversial PFAS Measures
A bipartisan group of 162 House lawmakers, more than one-third of the chamber, is urging defense bill conferees to back a host of measures that would advance policies and regulations on perfluorinated chemicals, signaling a major push to secure even those measures that were expected to spark a conflict between the two chambers during conferencing.

Among the policies championed in a Sept. 3 letter to the leaders of the House and Senate Armed Services committees is a controversial provision in the House bill that would require EPA to designate all PFAS as “hazardous substances” under the Superfund law.

The Senate did not include such a measure in its bill, due in part to objections from Sen. John Barrasso (R-WY), the chairman of the Environment and Public Works Committee.

Designating PFAS as hazardous substances would trigger cleanup liability for a host of entities. The prospects of such a move have already prompted early calls for exemptions from liability for water utilities and others, and hints of industry pushback over such carve-outs.

Both drinking water and wastewater utilities have urged lawmakers to exclude the provision from the final defense bill, or at a minimum, to create a liability exemption for PFAS-containing residuals created by the drinking water and wastewater treatment process.

Water Utilities Ask Congress For CERCLA Exemption For PFAS Residuals
As lawmakers gear up to resolve differences in their pending defense bills to address per- and polyfluoroalkyl substances (PFAS), water utility groups are, for the first time, detailing joint principles, including asking for a liability exemption for PFAS-containing residuals if the bill requires EPA to designate the chemicals as “hazardous substances” under the Superfund law.

“Liability for PFAS clean-up should rest with PFAS producers,” four utility groups representing a large swath of drinking water and wastewater utilities across the country say in an Aug. 8 letter to leaders of the Senate and House Armed Services committees.

“If Congress does designate PFAS as a hazardous substance under [the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA)], an exemption for water and wastewater treatment residuals should be included.”

While some sources say the Superfund law already contains language that would provide liability protection for wastewater utilities that land apply their biosolids, other sources say those provisions have not been fully tested and questions remain.

POTWs’ Legal Uncertainty Drives Fear Over PFAS Superfund Designation
As Congress weighs defense authorization legislation that would designate perfluorinated chemicals as hazardous substances under the Superfund law, wastewater utilities are opposing the language, fearing it would impose significant liability due to the presence of the chemicals in the biosolids they generate.

But the calls for liability exemptions from water utilities and other groups are prompting pushback from other industry sectors.

Industry Battle Brews Over Calls For Narrow PFAS Liability Waivers
Chemical manufacturers and other industrial waste generators are signaling they plan to fight efforts by water utilities, airport operators and other groups that are seeking narrow, sector-specific waivers from cleanup liability should policymakers list per- and polyfluoroalkyl substances (PFAS) as “hazardous substances” under the Superfund law.

“3M is not aware of a compelling reason to create exemptions from [Superfund’s] existing liability provisions,” says a spokeswoman for the Minnesota-based chemical giant, which was an early manufacturer of the chemicals.

While industry groups have not, until now, voiced opposition to such carve-outs, an industry source believes potentially liable parties -- including chemical manufacturers, the oil and gas industry, the Defense Department and firefighting foam producers -- would likely step up their opposition if policymakers move closer to granting such waivers.

Other environmental policies will also take center stage next week, as Democratic leaders of several committees are teeing up potential action on other environmental issues, including questioning the Trump administration about its CWA policy priorities and exploring climate mitigation options.

House Panel Schedules Oversight Hearing On Trump’s CWA Policies
The House Transportation and Infrastructure Committee (T&I) has scheduled a Sept. 18 hearing on the Trump administration’s Clean Water Act (CWA) policy initiatives where agency water chief David Ross is scheduled to testify, with Democratic lawmakers likely to attack Trump’s CWA jurisdiction rollback and other deregulatory efforts.

Among the topics likely to be discussed at the House transportation panel’s water hearing are the Trump administration’s planned repeal and replacement of the Obama-era definition of waters of the United States, proposals to limit state discretion in determining whether federally permitted activities comply with state water quality standards, and a planned rulemaking to modify when the agency can “veto” dredge-and-fill permits issued by the Army Corps of Engineers.

The House climate select panel’s Sept. 5 “request for information” asks for details about which policies Congress should adopt to decarbonize the transportation, power, industry and building sectors. Regarding electricity, it further asks for design ideas for clean energy standards and for input on how Congress can expedite dispatch of interstate transmission lines for renewable energy.

House Select Climate Committee Seeks Input On Broad Range Of Policies
The House select climate committee is asking for public input on the carbon mitigation measures it should endorse in specific policy recommendations it will send to relevant committees next year, releasing over a dozen detailed questions on a broad range of policies to help guide the process.

It also asks, “What policies should Congress adopt to ensure that the United States is a leader in innovative manufacturing clean technologies, creating new, family-sustaining jobs in these sectors, and supporting workers during the decarbonization transition?” Additionally, the committee asks, “What policies should Congress adopt to ensure that environmental justice is integral to any plan to decarbonize these sectors?”

A committee spokesman says the questions are open to any individual or group, such as local, state and tribal governments; businesses; academics; non-profits; and residents, including young climate activists.

The deadline to submit responses is Nov. 22, and the answers will help inform the committee’s draft recommendations due next March, and its final report due next December.