Deference
A PFAS Diary
It's been a minute since we did a PFAS (per- and polyfluoroalkyl substances or "Forever Chemicals") in drinking water roundup. If you'd like to start at the beginning of the PFAS saga, you can find all my earlier PFAS posts in the previous roundup. Here are my diary notes since then with posts, news, and links.
March 10, 2024. In Wrong Side of the Road, we showed that the Environmental Protection Agency (EPA) had stepped in to help the Washington State Department of Ecology (Ecology) in testing private wells in the area of PFAS contamination from Spokane International Airport, who previously had not been receiving the same testing as their neighbors across the road in the area of contamination from Fairchild Airforce Base.
March 22, 2024. In Funding for PFAS, we discussed a letter that Toxic-Free Future and partners, including myself, sent to Ecology, urging the agency to put forward a plan for solving the PFAS in drinking water crisis facing Washington state, and requesting a meeting with the Director.
April 10, 2024. EPA announces the final National Primary Drinking Water Regulation (NPDWR) for six PFAS compounds. In You Can't Get Fooled Again, we showed how EPA had to sprint to the finish line to keep these rules safe from congressional review in a potential incoming administration.
April 19, 2024. EPA action designates two widely used PFAS as hazardous substances under the Superfund law, improving transparency and accountability to clean up PFAS contamination in communities. In Discretion is the better part of designation, we showed that the EPA's enforcement discretion in its PFAS Superfund designation will help make sure that the polluters, not the victims, pay for cleanup.
April 26, 2024. The new drinking water rule is published in the Federal Register, with an effective date sixty days out on June 25th. The Safe Drinking Water Act requires parties challenging a regulation to file a petition within 45 days of its publication in the Federal Register, or by June 10th.
May 8, 2024. I reach out to the Department of Defense (DoD), Naval Air Station Whidbey, Fairchild Air Force Base, and Joint Base Lewis-McChord, who also look after Yakima Training Center, for their plans to comply with the new EPA Drinking Water rule. I receive responses from just the first two, both stating that DoD would issue a policy by June 24th, the day before the rule comes into affect.
May 29, 2024. EPA Region 9 issues a Unilateral Administrative Order (UAO) under the Safe Drinking Water Act to the U.S. Air Force for the Tucson International Airport Area Superfund Site to develop a water treatment plan for per- and polyfluoroalkyl substances (PFAS) for EPA's review and approval.
June 7, 2024. The first of at least three lawsuits against the new drinking water rule is filed. The American Water Works Association (AWWA) and the Association of Metropolitan Water Agencies (AMWA) file a petition with the U.S. Court of Appeals for the District of Columbia Circuit to review U.S. EPA’s Final PFAS Drinking Water Rule.
June 10, 2024. The National Association of Manufacturers files a similar petition, as does PFAS manufacturer Chemours, as the window for such petitions closes.
June 13, 2024. The signatories of March's letter to Ecology have our requested meeting with the Director and staff. I am able to point out that on Whidbey Island, as in Spokane, wells in areas contaminated by military sources of PFAS are getting tested but those contaminated by non-military sources are not. I request the same testing for these communities as Ecology is carrying out with EPA help around Spokane International Airport. The Director asks if have asked EPA directly. I have to say that I have not. After the meeting, I begin to research the most effective channel to do just that.
June 24, 2024. The promised DoD policy does not appear. I am assured that they are working on it.
June 25, 2024. The new drinking water rule for PFAS comes into effect
June 28, 2024. In a 6-3 ruling, split along ideological lines, the Supreme Court in the Loper Bright case overturns their own 1984 Chevron Deference decision As Substack's own Joyce Vance explains in Why You Should Be Concerned About Loper Bright:
The administrative state, which conservatives have spent decades attacking, has operated since the Chevron decision in 1984 on the basic premise that Congress passes laws and agencies issue regulations that implement them. What happened when a regulated entity didn’t like an agency’s decision? They could sue.
The longstanding Chevron deference doctrine required courts to defer to agency action when the law was ambiguous and the agency’s view was reasonable. That came to an end on Friday, when Chief Justice Roberts wrote for the majority in no uncertain terms, “Chevron is overruled.” After Loper Bright, it’s up to the courts. Judges need no longer defer to subject matter experts at a federal agency after the Supreme Court wrote that the experts have “no special competence” and decided courts were better suited to make these decisions.
July 8, 2024. Following up on the conversation with the Director of Ecology on June 13, I send a letter to the EPA Region 10 Administrator and to the Ecology Director asking the EPA to help Ecology with testing private wells for PFAS around rural fire stations on Whidbey Island and elsewhere as they are doing around Spokane International Airport.
July 18, 2024. Well, that didn't take long. Just three weeks after the Supreme Court decision, the US Air Force challenges EPA’s emergency order on PFAS cleanup at Tucson Superfund Site citing Chevron Deference.
July 26, 2024. An article in the local paper mentions PFAS contamination in the Whispering Pines mobile home park's water system here on Whidbey Island. I've been tracking this one. It's just across Highway 20 from the Naval Air Station Whidbey's Area 6 Landfill, which is known to be contaminated with PFAS and other contaminants such as dioxane. Despite pressure from the local EPA office, the Navy will not consider stepping out their areas of testing and responsibility to include communities like Whispering Pines until the DoD issues a policy decision on the new PFAS rule.
August 2, 2024. EPA Region 10 has received my letter and calls me with some clarifying questions while they work on an answer.
August 9, 2024. Another article in the paper tells that Whispering Pines decides to go ahead and fix the PFAS problem themselves with Drinking Water State Revolving Fund money.
August 12, 2024. I learn about the Air Force’s refusal to treat PFAS in drinking water around Tuscon Airport when the story hits mainstream news. I write to my DoD contact asking if this is the new PFAS policy. I receive a very apologetic answer saying they can't respond directly and need to coordinate all media queries through DoD’s Public Affairs office. If I wish, they will work with the media office to get me an official comment. I ask for an official comment.
August 13, 2024. The Guardian reports: WHO to scrap weak PFAS drinking water guidelines after alleged corruption.
Regulations ignored credible research and didn’t fully protect human health, independent scientists say. The move follows allegations that the process of developing the figures was corrupted by industry-linked researchers aiming to undercut strict new US PFAS limits and weaken standards in the developing world.
Safe drinking water is on the ballot in November.
Well, as you can tell, a lot has happened, or, in some cases, not happened, since the last roundup, but much remains unresolved. We have more loose ends than we started with. I hope we can tie some of them up soon.
It took just three weeks for the consequences of the Supreme Court's decision overruling the Chevron deference to be felt in undermining drinking water protections for the public. Chevron is just a foretaste of the wholesale destruction of the administrative state laid out in Project 2025.
Safe drinking water is on the ballot in November.
In the coming weeks, I'm excited and honored to have two guest essays scheduled in other publications. I'll be sharing links to those with you. At the end of the month, I'm giving a talk on water system consolidation. I'll tell you all about it. I promise it's more fun than it sounds. Starting with that conference, I have four visits scheduled over the next few months to Central Washington and the Yakima and Columbia rivers. I'll be looking at the region through a water lens and reporting back.
Just incredible work collected here, John. Thank you for doing this.
Thank you John for such actions to spare our Earth’s environment this ongoing degradation. I appreciate your efforts tremendously.