WASHINGTON – Sen. Shelley Moore Capito is the chief sponsor of a bill that would regulate the use of widely used industrial chemicals.
Capito (R-W.Va.), Kirsten Gillibrand (D-N.Y.) and Tom Carper (D-Del.) introduced the PFAS Release Disclosure Act on May 16. According to Capito’s office, the legislation “would improve the availability of information related to perfluoroalkyl and polyfluoroalkyl substances (PFAS)” and “would provide a clear process for the Environmental Protection Agency (EPA) to identify and share with the public and policymakers sources of PFAS emissions around the country, while respecting the formal rulemaking processes and scientific approach.”
A spokeswoman for Capito told The West Virginia Record that in recent years, a growing body of science has shown “the harmful effects certain PFAS pollutants can have on individuals with prolonged exposure to them.”
“This issue is important to Senator Capito as communities in West Virginia have experienced these consequences from PFAS pollution,” said Kelley Moore. “It’s important to the senator that we get a handle on this and her recent legislation addresses the issue.”
Capito’s latest bill would require the addition of perfluoroctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) to the EPA’s Toxic Release Inventory (TRI), which is a centralized database of environmental releases or waste processing of toxic chemicals by industrial and federal facilities. Owners of registered sites are accountable for reporting stockpiles of these chemicals to the EPA.
More than 650 chemicals are currently listed on the TRI, but none are PFAS.
Capito’s “PFAS Release Disclosure Act” would require that any PFAS subject to an existing Significant New Use Rule (SNUR) under the Toxic Substances Control Act (TSCA) be added to the TRI. This provision is believed to apply to almost 200 of the 602 PFAS that are currently in commerce.
It also would require any PFAS subject to an ongoing or future SNUR or finalized toxicity value — including the ongoing review of the compound GenX — be added to the TRI after finalization of the relevant SNUR or toxicity value. And, it would set the reporting threshold for PFAS by entities subject to TRI reporting at a level of 100 pounds.
That 100-pound disclosure threshold is lower than almost all others in the TSCA. Most are 10,000 or 25,000 pounds. The EPA has set thresholds for a handful of substances at 10 or 100 pounds after careful consideration of their toxicity.
The bill also would direct the EPA to decide whether to add several additional specific PFAS for addition to the TRI within two years. The bill would protect confidential business information from publication while still including PFAS compounds that includes such information in TRI reporting, while directing EPA to take steps to maximize transparency.
A critic says Capito’s plan will be hailed by trial lawyers.
“Senator Capito’s Toxic Release Inventory proposal is a bright beacon for ambulance chasers to knock on the doors of every company that uses PFAS applications in their manufacturing process, like pharmaceutical and semiconductor companies, and every gas station, airport and refinery that uses fire retardants,” said the anonymous source familiar with the legislation.
Plaintiff lawyers have been recruiting cities and states as clients to sue regarding PFAS contamination. New York and New Jersey have sued 3M and other companies regarding PFAS emissions from firefighting foam.
This is the third PFAS-related bill Capito has introduced in recent months. She and Gillibrand introduced another earlier this week related to PFAS standards for drinking water, while she and Carper introduced one in March that would require the EPA to declare PFAS hazardous substances eligible for cleanup funds under the EPA Superfund law, and also enable a requirement that polluters undertake or pay for remediation.
“A significant part of mitigating the harmful effects of PFAS pollution is making sure individuals, businesses, and local leaders have access to information on contaminants,” said Capito, a leader on the Senate Environment and Public Works Committee. “This bipartisan legislation would address the challenges posed by the emissions of hundreds of types of PFAS in a responsible, measured, and commonsense way, respecting the rulemaking process while also protecting public health and the environment.
“It’s another step in addressing what has proven to be a serious and widespread problem and a solution that I hope will lead to smarter, more informed use of PFAS by industry and government moving forward.”
The proposed bills could make such litigation easier to pursue by placing specific limits on PFAS emissions that manufacturers would have difficulty controlling if the chemical is contained in widely used products. Bills requiring municipal water systems to remove PFAS from drinking water could lead to class action lawsuits seeking repayment of billions of dollars for filtering systems.
But critics of the bills say it’s premature to ban all PFAS chemicals before their hazardous effects have been determined.
The CDC, in a broad review of the research in 2018, said the studies so far aren’t conclusive. Some Republicans say the EPA already has sufficient power, under the Clean Water Act and other laws, to control PFAS compounds that are proven unsafe.
“I don’t know how they can do 5,000” chemicals, said Tracy Mehan, executive director for government affairs of the American Water Works Association. “I don’t know how you’d do it. Unless you acted without information, without a risk assessment, without benefit costs, without knowing technology, how you do that whole family. It just defies my understanding.”
Dubbed “forever chemicals” by environmentalists and lawyers, PFAS are highly stable compounds that persist in the environment for years. They are a diverse group of compounds resistant to heat, water, and oil. For decades, they have been used in hundreds of industrial applications and consumer products such as carpeting, apparels, upholstery, food paper wrappings, fire-fighting foams and metal plating.
PFAS have been found at very low levels both in the environment and in the blood and tissue samples of the general U.S. population.
Because they are easily detected in groundwater, PFAS have become grist for litigation by private lawyers. DuPont agreed in 2017 to pay $670 million to settle lawsuits over C8, whichi is a PFOA in the PFAS family that was used in Teflon nonstick coating and other products, and still faces extensive multidistrict litigation. The C8 cases were claims made by residents near the Washington Works plant in Parkersburg.
Opponents of the bill say the prevalence of PFAS already is diminishing. According to the CDC, PFOA and PFOS levels are down 70-80 percent.
PFAS also are broadly used by industry and the U.S. government in consumer products, industrial applications, and mitigating volatile chemical and hydrocarbon fires.
Capito’s spokeswoman pointed to military bases and heavy industry as responsible for widespread contamination.
“The sources of PFAS contamination are industrial sites that make or use the material in products and sites — primarily military bases — that use PFAS in firefighting foams,” Moore told The Record. “In West Virginia, the state has been impacted by both a legacy of industrial contamination in Parkersburg and surrounding communities from industrial emissions and contamination from training and fighting actual fires at an Air National Guard base in Berkeley County.”
