Senate Committee Hearing on EPA’s Proposed FY 2024 Budget Addresses TSCA, PFAS

The Senate Committee on Environment and Public Works held a hearing on March 22, 2023, on the U.S. Environmental Protection Agency’s (EPA) fiscal year (FY) 2024 budget proposal. EPA Administrator Michael Regan was the Committee’s only witness. In his written testimony, Regan notes that EPA has “significant responsibilities” under amendments to the Toxic Substances Control Act (TSCA) to ensure the safety of chemicals in or entering commerce and to address unreasonable risks to human health or the environment. According to his testimony, the FY 2024 budget includes $131 million and 534 full-time equivalents (FTE) to support EPA’s TSCA program, an increase of $48 million and 174 FTE over the 2023 level. Regan testified that these resources will enable EPA to realize fully the promise of the bipartisan Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act). The proposed budget will allow EPA to issue protective chemical safety rules while also supporting the innovative new chemistries needed to propel the semiconductor, automotive, and battery sectors forward.

Senator Cynthia Lummis (R-WY) asked Regan about the effect designating per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) would have on public wastewater utilities. Lummis stated that she has heard concern from the utilities that a CERCLA listing for PFAS could leave them liable to bear the costs of contamination, putting the onus on local communities and households. Lummis asked Regan whether EPA plans to hold public wastewater utilities liable for PFAS contamination under CERCLA. Regan responded that EPA’s goal is to use its enforcement authority to hold the companies responsible accountable. EPA also aims to prevent the burden from falling on wastewater treatment facilities. Lummis asked whether EPA has the authority to provide exemptions, because exercising enforcement discretion does not seem sufficient. Regan testified that while EPA has enforcement discretion, it does not have the statutory authority to provide exemptions. As reported in our August 29, 2022, memorandum, EPA has proposed to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), two of the most widely used PFAS, as hazardous substances under CERCLA. More information on EPA’s March 14, 2023, public listening session on a potential CERCLA enforcement discretion policy is available in our March 17, 2023, memorandum.

Senator Shelley Moore Capito (R-WV), Ranking Member of the Committee, asked about the health advisories and maximum contaminant levels (MCL) EPA has issued for PFAS. In June 2022, EPA released four drinking water health advisories for PFAS. As reported in our March 16, 2023, memorandum, on March 14, 2023, EPA announced that it will propose the first-ever national drinking water standard for six PFAS. The proposed National Primary Drinking Water Regulation (NPDWR) would regulate PFOA and PFOS as individual contaminants, with an enforceable MCL of four parts per trillion (ppt). Capito noted that the health advisory level is so low that it cannot be measured, but that EPA now has proposed an MCL of four ppt that is considered safe. According to Capito, Radhika Fox, Assistant Administrator for EPA’s Office of Water, recently testified that there is no safe level for PFAS in drinking water. Regan responded that EPA issued the health advisories because it wanted to educate the public because there are actions that can be taken beyond those that can be taken by the federal government. The proposed MCLs are set at four ppt because that level can be detected and there is technology to reduce PFOA and PFOS to that level.

Senator Edward Markey (D-MA) asked how necessary the proposed increase is for EPA to address toxic substances such as polychlorinated biphenyls (PCB), asbestos, and lead in our communities, as well as to get them out of our economy wherever they are unnecessary. Regan stated that the increase is extremely important. According to Regan, EPA needs the workforce and the resources, and it is ready to do the work.

Commentary

There were no surprises during yesterday’s hearing. As reported in our April 12, 2022, May 2, 2022, and May 20, 2022, memoranda on last year’s hearings on EPA’s proposed FY 2023 budget, EPA has maintained that it lacks the resources it needs to meet the deadlines under the Lautenberg Act. EPA’s justification for its FY 2024 appropriation estimates includes ambitious target dates:

• By September 30, 2026, complete at least eight high-priority substance TSCA risk evaluations annually within statutory timelines compared to the FY 2020 baseline of one;
   
• By September 30, 2026, initiate all TSCA risk management actions within 45 days of the completion of a final existing chemical risk evaluation; and
   
• By September 30, 2026, review 90 percent of risk management actions for past TSCA new chemical substances reported to the 2020 Chemical Data Reporting Rule (CDR) compared to the FY 2021 baseline of none.

It seems unlikely that a divided Congress will approve President Biden’s proposed budget.