Tillis votes down amendment targeting toxic PFAS chemicals; cites “jurisdictional” issues

WASHINGTON — U.S. Sen. Thom Tillis backs legislation that would declare a broad class of toxic substances as hazardous under the EPA, but he recently opposed a similar effort that would apply only to the U.S. Department of Defense.

Tillis, a freshman Republican who sits on the Senate Armed Services Committee, voted against an amendment to a defense policy bill last month that would have designated two per- and polyfluoroalkyl substances (PFAS) as hazardous under Title X of the U.S. Code — the law governing the Defense Department. Doing so would have given the department more discretion to use funds to clean up contaminated areas, recover related costs from polluters, and reimburse communities for cleanup efforts.

PFAS are used in tape, nonstick pans, carpeting, waterproof clothing and firefighting foam. The foam, which is used in military training exercises, is often the source of contamination on and near bases. PFAS have been found in the water systems at 328 military bases, including those supply Fort Bragg in Fayetteville.

PFAS have been linked to cancer and other serious health problems and may weaken immunity to COVID-19 and other infectious diseases, according to the Centers for Disease Control and Prevention.

The Defense Department provision was among several included in a larger PFAS amendment to the National Defense Authorization Act (NDAA) that was offered during a closed-door markup of the bill in June. The amendment included other provisions that would expand military access to PFAS blood testing, increase PFAS clean up funding and address the incineration of PFAS-laden firefighting foam, sources said.

Tillis and 13 other committee Republicans voted against the PFAS amendment, effectively killing it. The committee’s 13 Democrats voted for it.

At the same time, Tillis supports a measure that would take similar action to crack down on the substances but on a larger scale. Last year, he co-sponsored legislation that would require the EPA to declare PFAS as hazardous substances eligible for cleanup funds under the nation’s Superfund law. The provision, which was sent to committee where it still sits, would have required those deemed responsible for PFAS contamination — including the Defense Department — to undertake or pay to remediate contaminated sites in North Carolina and around the country.

Tillis spokesman Daniel Keylin said the reason for the senator’s “no” vote on the defense amendment relates to regulatory jurisdiction over PFAS.

“Setting regulations for the treatment and regulation of PFAS should be led by the agencies with expertise, including the EPA, and DOD should abide by the rules created by those agencies,” Keylin said in an email. “That is why Senator Tillis is pushing for the EPA to create a national PFAS standard, and he would like for the EPA to have regulatory responsibilities and oversight, and not the DoD, especially since the private sector bears significant responsibility for PFAS contamination.”

Keylin also cited Tillis’s concerns that the provision could undermine the NDAA’s chances of passage. “Senator Tillis has always pushed for every NDAA to gain bipartisan consensus so it can get signed into law without delay.”

And Keylin noted that Tillis did back some modest PFAS amendments that were approved during the NDAA markup. Such amendments would increase PFAS-related funding for the CDC and the Defense Department; require the department to study how to phase out PFAS-laden foam; and include the Army National Guard in environmental restoration projects related to some PFAS cleanup efforts.

Emily Donovan, co-founder of Clean Cape Fear, a clean water advocacy group in North Carolina, said she was disheartened by Tillis’s committee vote against other PFAS provisions. She said the senator has a “genuine interest in hearing from constituents” about the issue, which is of special concern in North Carolina, where especially high concentrations of the substances have been found in numerous sources of public drinking water.

But she added that she has not seen “alignment on what is truly needed to be health protective in North Carolina” in the legislation he supports.

Last year, House-passed legislation that would have declared PFAS as hazardous under the EPA was stripped from the annual defense bill during negotiations with the U.S. Senate. That, she said, gave Tillis “plausible deniability” on the issue, allowing him to claim that he supports the effort but to also say, “Oh, shucks darn … that’s how it works,” when it didn’t become law.

Tillis has branded himself as a moderate dealmaker in a purple state, a stance that helped him oust Democratic Sen. Kay Hagan in 2014. After President Donald Trump’s victory in 2016, Tillis called on “elected officials in both parties to break through the gridlock to finally start producing results.”

But critics say the former business executive — one of the nation’s more vulnerable senators in this fall’s elections — is more conservative than he lets on. In 2019, he ranked as the 15th most conservative member of the Senate, to the right of 38 others in his caucus.

Democrats say they will continue to explore legislative opportunities to address PFAS, including in the NDAA. The bill, which authorizes funding for the Defense Department and other national security programs through the end of fiscal year 2021, is regarded as “must-pass” legislation and therefore seen as an optimal target for PFAS-related amendments.

The Senate is expected to resume debate on the bill after it returns from its July Fourth recess later this month.

House amendments

On the other side of the Capitol building, the House Armed Services Committee marked up its version of the bill last week. In doing so, it approved a stronger and more comprehensive set of amendments to the NDAA than were approved in the bill that passed the Senate committee.

U.S. Rep. David Price, a Democrat from the 4th District in central North Carolina, called the bill’s provisions a “bold step in the right direction” but said more is needed to fully address the problem.

He expressed support for the PFAS Action Act, which would, among other requirements, direct the EPA to create a national enforceable drinking water standard for certain types of PFAS within two years and list them as hazardous substances under the nation’s Superfund law.

The act passed the House in January with bipartisan support. Three Democratic lawmakers from North Carolina — Price and Reps. G.K Butterfield and Alma Adams — and three Republicans — Reps. George Holding, David Rouzer and Richard Hudson — backed the bill.

North Carolina Republican Reps. Greg Murphy, Virginia Foxx, Dan Bishop, Patrick McHenry, Ted Budd and ex-Rep. Mark Meadows opposed the bill. GOP Rep. Mark Walker didn’t vote.

The White House threatened to veto the PFAS Action Act in January claiming it would “create considerable litigation risk, set problematic and unreasonable rulemaking timelines and precedents and impose substantial, unwarranted costs” on agencies and others.

The EPA, the White House added, is “taking extensive efforts to help communities address PFAS nationwide” through its own PFAS Action Plan.

In May, Price, Adams and Rouzer signed a letter to Democratic and Republican leaders of the House Armed Services Committee calling for “strong” PFAS provisions in NDAA, and cited the PFAS Action Act.

Differences between the House and Senate versions of the bill will be negotiated in conference committee, where the provision that would have classified PFAS as hazardous substances under the Superfund law was struck late last year, as were some other PFAS-related provisions.

Scott Faber, senior vice president for government affairs at the Environmental Working Group, said prospects for strong PFAS language is better this year than it was last year. “The landscape has shifted since last year,” he said, noting that few issues resonate more in an election year than protecting service members. “So we’ll see,” he said.