Peters, Johnson Call for Information on Interagency Dispute over Groundwater Cleanup Guidelines for PFAS Chemicals

WASHINGTON, DC – U.S. Senators Gary Peters (D-MI) and Ron Johnson (R-WI), the Ranking Member and Chairman of the Senate Homeland Security and Governmental Affairs Committee, issued a bipartisan call for information following a recent news report that a review of the Environmental Protection Agency’s (EPA) cleanup guidelines for perfluorooctanoic acid (PFOA) and perfluorooctanoic sulfonate (PFOS) – two chemicals structures belonging to a class of chemicals known as PFAS – have been delayed due to a disagreement between government agencies about the proposed groundwater contamination standard. According to the report, the Department of Defense (DOD), National Aeronautics and Space Administration (NASA), and the Small Business Administration (SBA) objected to the EPA’s proposed contamination standard, initiating an interagency review process at the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB).

“I am deeply troubled by a recent report that the EPA’s PFAS guidelines have been delayed because certain federal agencies are trying to avoid their responsibility to clean up toxic PFAS chemicals,” said Senator Peters. “Communities in Michigan and across the country are facing a serious public health crisis, and we cannot afford to wait any longer. I’m working to ensure the government completes its review process quickly so EPA can set strong guidelines to support efforts to cleanup these harmful chemicals.”

In a letter to OMB, Peters and Johnson requested documents and communications exchanged between OMB, DOD, NASA and SBA in the review process, and urged OIRA to resolve any remaining conflicts and swiftly conclude its review. Peters previously wrote to OMB pressing for information on agency discussions around EPA’s proposed “PFAS Action Plan,” which did not include a cleanup standard.

The news report suggests that DOD and other agencies are using the interagency process to dilute the proposed standards and reduce the number of sites they would be responsible for cleaning up. There are multiple military installations in Michigan with PFAS contamination that could be excluded from remediation efforts if EPA does not set appropriately strong cleanup standards. Recently, the U.S. Air Force was refusing to work with the State of Michigan to address PFAS contamination at Wurtsmith Air Force Base in Oscoda. Peters pressed Secretary of the Air Force Heather Wilson to cooperate with the state’s cleanup efforts and was able to secure a commitment from the Air Force to assist in remediation. Assistant Secretary of the Air Force for Installations, Environment and Energy John Henderson also committed to visiting Oscoda at Senator Peters’ request.

As Ranking Member of the Senate’s top oversight committee, Peters has played a leading role in addressing the PFAS crisis. Last year, Peters convened the Senate’s first hearing on PFAS contamination to discuss the federal government’s role in the cleanup process. Peters also helped introduce legislation to require EPA to declare PFAS as hazardous substances eligible for cleanup funds under the EPA Superfund law and require polluters to pay for cleanup. Peters also authored a provisions that were signed into law allowing commercial airports to transition away from using firefighting foams that contain PFAS and encouraging the DOD to develop new, safer PFAS-free firefighting alternatives.

The text of the letter is copied below and available here: 

March 22, 2019

The Honorable Mick Mulvaney

Director

Office of Management and Budget

Executive Office of the President

725 17th Street NW

Washington, DC 20503

Dear Director Mulvaney,

We write regarding guidelines proposed by the Environmental Protection Agency (EPA) to address groundwater cleanup for perfluorooctanoic acid (PFOA) and perfluorooctanoic sulfonate (PFOS), which have been under review at the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) since August 31, 2018. These guidelines, part of the EPA’s broader action plan for addressing a class of chemicals known as PFAS, have been under review for over six months—nearly three months longer than the review time required by Executive Order 12,866.

Although we appreciate that interagency review serves to ensure “that decisions taken or planned by one agency do not conflict with the policies or actions taken or planned by another agency,” a timely review is essential here.  According to the EPA, these guidelines will support federal entities making site-specific cleanup decisions by, for example, directing how an agency identifies and remediates PFOA/PFOS-contaminated water sources. However, a recent article suggested that the delay in finalizing review of these guidelines is due to disagreement between the EPA and other agencies—specifically, the Department of Defense (DOD), the National Aeronautics and Space Administration (NASA), and the Small Business Administration (SBA)—about EPA’s proposed groundwater contamination standard. Given the significance of this issue, it is essential that OIRA resolve any remaining interagency conflicts and conclude its review as soon as possible. 

In order to better understand the role of DOD, NASA, SBA, and other agencies in the interagency review process for EPA’s groundwater cleanup guidelines, as well as to better understand the nature of OIRA’s continued review, we respectfully request that you provide the following information:

1. Which agency identified EPA’s proposed guidelines as a “significant regulatory action” such that review by OIRA was appropriate under Executive Order 12,866? Additionally, please provide all information about that determination, including when that determination was made, the person/s who made that determination, and the substance of the determination?
2. Please provide all substantive documents and communications exchanged between OMB and DOD, EPA, SBA, or NASA, related to the EO 12,866 review of the proposed groundwater cleanup standards for PFOA and PFOS.
3. Has there been a request to extend the OMB review deadline from EPA? If so, who made this request and when?
4. Why is the guidance still being reviewed at OIRA beyond the 90 (or 120) day period allowed under EO 12,866? Please provide OMB’s justification and rationale for continuing to review the guidance beyond the 120 days, including all documents and communication associated with this decision?
5. When will OMB release the draft guidance back to EPA?
6. What steps have OIRA/OMB staff taken to resolve any interagency conflicts with respect to the draft guidance? Do any interagency conflicts remain unresolved? If any conflicts are unresolved, has OIRA/OMB exercised the conflict resolution procedures outlined in Section 7 of Executive Order 12,866?

Please provide this material as soon as possible but no later than 5:00 p.m. on April 4, 2019.

            The Committee on Homeland Security and Governmental Affairs is authorized by Rule XXV of the Standing Rules of the Senate to investigate “the efficiency, economy, and effectiveness of all agencies and departments of the Government.” Additionally, Senate Resolution 70 (116th Congress) authorizes the Committee to investigate “the efficiency and economy of operations of all branches of the Government.”

Thank you for your prompt attention to this request. If you have any questions about this request, please have your staff contact Satya Thallam of Chairman Johnson’s staff at (202) 224-4751 and Yogin Kothari of Ranking Member Peters’ at (202)-224-2627. Thank you for your attention to this matter.