Congress Presses Forward on PFAS Measures

Faced with rising EPA and state regulatory activities on per- and polyfluoroalkyl substances (“PFAS”)[i], Congress is advancing proposals that would regulate or impose restrictions on these “forever chemicals.” More than thirty bills connected to PFAS are now pending in the United States Congress. These bills cover various issues, including military uses, funding assistance, detection and research, product stewardship, site remediation, and regulatory obligations.

The PFAS Action Act of 2021(ii), passed by the House last month by a vote of 241-183 with twenty-three Republicans joining their Democratic colleagues in support of the bill, is the most comprehensive of these initiatives and has attracted substantial public attention. The bill is currently pending before the Senate Environment and Public Works Committee.

It is vital to remember that the PFAS provisions of this proposed law may be integrated into other initiatives, such as those addressing infrastructure), spending, or defense, notwithstanding the bill’s uncertain future in the Senate.

The PFAS Action Act of 2021 would impose new obligations on PFAS under current regulatory frameworks, including those 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 perfluorooctanesulfonic acid (PFOS), two of the most common PFAS chemicals, as “hazardous substances” under Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The EPA would be 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, regulations 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).
• Within two years, the EPA must adopt a rule mandating toxicity testing of PFAS under Section 4(a) of the Toxic Substances Control Act (TSCA);
• 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, when materials containing PFAS or aqueous film-forming foam are cremated, PFAS emissions into the atmosphere be avoided to the most significant degree possible; and
• The EPA will establish a labeling program for products to indicate whether or not they contain PFAS.

Despite passing the House, the bill was met with heated debate and opposition in the Senate. Those who support the bill include those who want to expedite EPA regulatory action on PFAS and those who want a more consistent national approach to PFAS issues in the face of a growing patchwork of state regulations.

However, some 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, including sites that have been 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, some are concerned that the proposed aggressive timelines for EPA regulatory action do not allow for a science-based process and are 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 but ultimately was 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, a comprehensive and “must-pass” bill that policymakers view as a reliable source of funding for a variety of initiatives.

In this legislative session, the practice of utilizing a “must-pass” bill to impose PFAS regulatory demands may be followed. Entities that may have been exposed to PFAS through manufacturing, distribution, or usage would be well-advised to monitor legislative developments constantly.

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.

Authorization Act for the Department of Defense for Fiscal Year 2020 (which included, among other things, a provision adding a significant number of PFAS compounds subject to reporting under the Toxic Release Inventory program and establishment of a PFAS research initiative)

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