The Nickel Report

In the face of accelerating EPA and state regulatory activity on per- and polyfluoroalkyl substances (“PFAS”)[i], Congress is pressing forward with measures that would address or impose limitations on these “forever chemicals.” More than thirty such legislative measures are currently pending in Congress covering a number of subjects related to PFAS including, but not limited to, those involving military uses, funding assistance, detection and research, product stewardship, site remediation, and regulatory mandates. Of these, the most comprehensive initiative, and the subject of significant public attention, is 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 supporting the bill. The measure is now pending in the Senate before the Committee on the Environment and Public Works. While the path forward for this bill in the Senate may be uncertain, it is important to bear in mind that the PFAS provisions of this proposed legislation may be incorporated into other measures such as those addressing infrastructure[iii], spending or defense.

The PFAS Action Act of 2021 would impose new requirements on PFAS under various existing regulatory frameworks including those governing drinking water, wastewater discharges, air emissions, solid waste management and chemicals with expedited deadlines for action.  Key provisions include, but are not limited to, the following:

• Designation by EPA of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), two of the most prevalent PFAS compounds, as “hazardous substances” under the Section 102(a) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). EPA would be required to be complete this designation within one year, and consider similar designations of all other PFAS within five years;[iv]
• 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 standards for PFOA and PFOS, at a minimum, and establishment of a framework to regulate additional PFAS;
• Listing of PFOA and PFOS by EPA as “hazardous air pollutants” under Section 112(b) of the Clean Air Act (CAA) within 180 days (which would effectively result in a more expedited designation of PFOA and PFOS as CERCLA “hazardous substances” as well);
• Adoption of a rule by EPA imposing toxicity testing of PFAS under Section 4(a) of the Toxic Substances Control Act (TSCA) within two years;
• Establishment by EPA of water quality criteria for PFAS under Section 304(a)(1) of the Clean Water Act (CWA) and effluent limitations guidelines under Section 502 of the CWA for PFAS discharges for priority industry categories;
• Promulgation of regulations by EPA requiring that when materials containing PFAS or aqueous film forming foam are incinerated, PFAS emitted into the air are minimized to the extent feasible; and
• Establishment by EPA of labeling program for products to indicate whether they are PFAS-free.

Notwithstanding its passage in the House, the bill faced vigorous debate and opposition in that chamber. Supporters of the bill include those who seek to expedite EPA regulatory action on PFAS as well as those who desire a more consistent national approach to PFAS matters in the face of a growing patchwork of state regulations. However, some have voiced opposition to various aspects of the bill. For example, concerns have been raised that designating any PFAS compounds as CERCLA “hazardous substances” could lead to far-reaching impacts at sites across the country where PFAS has 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 designation of PFAS compounds as CERCLA “hazardous substances” would result in the imposition of substantial financial liability to passive receivers of PFAS. In addition, some are concerned that the proposed aggressive timeframes for EPA regulatory action do not allow for a science-based process and are not feasible.

The PFAS Action Act of 2021, is substantially similar to the PFAS Action Act of 2019[v], which was passed by the House during the past legislative session but was ultimately not enacted. However, during the past legislative session, Congress approved a number of PFAS legislative measures in the National Defense Authorization Act (NDAA) for Fiscal Year 2020[vi], an expansive and “must pass” bill viewed by policymakers as a reliable means for a variety of initiatives. The precedent of using a “must pass” bill to impose PFAS regulatory mandates may be followed this legislative session. In any case, entities that may have come into contact with PFAS, whether through production, distribution or use, would be well-served to closely monitor these legislative developments.

[i] See e.g., ICYMI: Recent Chemical and PFAS Agency Activities (July 23, 2021) at https://www.huntonnickelreportblog.com/2021/07/icymi-recent-chemical-and-pfas-agency-activities/

[ii] See H.R. 2467, PFAS Action Act of 2021, available at https://www.congress.gov/bill/117th-congress/house-bill/2467.

[iii] See e.g., H.R. 3684, INVEST in America Act, available at https://www.congress.gov/bill/117th-congress/house-bill/3684.

[iv] Notably, EPA has never previously exercised this authority under CERCLA; instead, it has relied on listings under other statutes referenced by CERCLA’s definition of “hazardous substances.”

[v] See H.R. 535, PFAS Action Act of 2019, available at https://www.congress.gov/bill/116th-congress/house-bill/535.

[vi] See S. 1790, National Defense Authorization Act 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) available at https://www.congress.gov/bill/116th-congress/senate-bill/1790?q=%7B%22search%22%3A%5B%22National+Defense+Authorization+Act%22%5D%7D&s=2&r=4.