Faced with rising EPA and state regulatory activities on per- and polyfluoroalkyl substances (“PFAS”) [i], the US Congress is advancing proposals that would regulate or impose restrictions on these “forever chemicals.” More than thirty bills connected to PFAS covering various issues, including military uses, funding assistance, detection and research, product stewardship, site remediation, and regulatory obligations
are now pending in the United States Congress.
Mid-Way Environmental Services, the leading non-hazardous liquid waste transportation, and disposal service, and a key player in PFAS disposal in the Oklahoma, Kansas, Arkansas, Missouri, and Texas areas, has shared some useful news about recent PFAS measures.
The PFAS Action Act of 2021(ii) was passed by the House by a vote of 241-183, with twenty-three Republicans joining their Democratic colleagues in support of the bill. It is the most comprehensive of PFAS disposal initiatives and has attracted substantial public attention.
It is important to note that PFAS provisions of this proposed law may be integrated into other initiatives. These include addressing infrastructure, spending, or defense, regardless of the bill’s future in the Senate.
The PFAS Action Act of 2021 would impose new obligations on PFAS under current regulatory frameworks. These include overseeing drinking water, wastewater discharges, air emissions, solid waste management, and chemicals, with accelerated action deadlines.
Essential requirements include, but are not limited to:
The EPA’s designation of perfluorooctanoic acid (PFOA) and perfluoro-octane-sulfonic acid (PFOS), two of the most common PFAS chemicals, labeled as “hazardous substances” under Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
The EPA is expected to finalize this classification within a year and propose comparable designations for all other PFAS compounds within five years.
Promulgation by EPA of national primary drinking water regulation under Section 1412(b) of the Safe Drinking Water Act (SDWA) for PFAS within two years, to include, at a minimum, rules for PFOA and PFOS, and construction of a regulatory framework for additional PFAS.
Listing of PFOA and PFOS as “hazardous air pollutants” under Section 112(b) of the Clean Air Act (CAA) within 180 days (which would result in a more rapid designation of PFOA and PFOS as “hazardous chemicals” under CERCLA).
• The EPA must adopt a rule mandating toxicity testing of PFAS under Section 4(a) of the Toxic Substances Control Act (TSCA) within two years.
• Establishment by the EPA of water quality criteria for PFAS under Section 304(a)(1) of the Clean Water Act (CWA) and effluent restrictions recommendations for PFAS discharges for priority industry categories under Section 502 of the CWA.
• Promulgation by the EPA of regulations mandating that PFAs emissions into the atmosphere to the extent possible when materials containing PFAS or aqueous film-forming foam are cremated.
• The EPA will establish a labeling program for products to indicate whether or not they contain PFAS.
The bill was met with heated debate and opposition in the Senate. Those who support the bill want to expedite EPA regulatory action on PFAS. The others want a more consistent national approach to PFAS issues in the face of a growing patchwork of state regulations.
However, some members have expressed opposition to various aspects of the proposed legislation.
Concerns have been raised, for instance, that the designation of any PFAS compounds as “hazardous substances” under CERCLA could have far-reaching consequences at sites across the country where PFAS have been used, released, or migrated. These include sites subject to cleanup actions and delisted from the National Priorities List.
There is also concern that the designation of PFAS compounds as “hazardous substances” under CERCLA would subject passive PFAS recipients to substantial financial liability.
Moreover, the proposed aggressive timelines for EPA regulatory action are not science-based and hence not feasible.
The PFAS Action Act of 2021 is quite similar to the PFAS Action Act of 2019[v], passed by the House during the previous legislative session. It was ultimately not adopted.
Nevertheless, during the most recent legislative session, Congress approved several PFAS legislative measures in the National Defense Authorization Act (NDAA) for the Fiscal Year 2020. It is a comprehensive and “must-pass” bill that policymakers rely on for funding various initiatives.
In this legislative session, the practice of utilizing a “must-pass” bill to impose PFAS regulatory demands may be followed.
Mid-Way Environment Services want entities with potential exposure to PFAS through manufacturing, distribution, or usage to monitor legislative developments continuously.
Notably, the EPA has never before exercised this authority under CERCLA; instead, it has relied on listings under other statutes cited by the definition of “hazardous chemicals” in CERCLA.
Midway Environmental Services, Inc. is the only commercial/industrial Class I injection well in Oklahoma.
Midway Environmental Services has a state-of-the-art facility capable of handling PFAS waste securely. It can be very effective in the disposal of PFAS waste.