Federal Government Takes More Steps Toward Regulating PFAS

Pierce Atwood LLP

Pierce Atwood LLP

On July 21, 2021, the U.S. House of Representatives approved a bill to designate two per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly referred to as the Superfund law. The PFAS Action Act would require the U.S. Environmental Protection Agency (EPA) to add perfluorooctanoic acid (PFOA) and perfluoroactanesulfonic acid (PFOS) to the list of hazardous substances within one year, and to assess all other PFAS within five years. If the bill becomes law, it would trigger assessment and remediation obligations under CERCLA.

PFAS are synthetic chemicals that have been used in a variety of consumer products such as nonstick cookware, food packaging, cosmetics, and waterproof clothing. These substances were also used in fire-fighting foam. They have been detected in groundwater near airports and firefighting training locations. PFAS are known as “forever chemicals” because some PFAS compounds such as PFOA and PFOS are mobile, persistent, can accumulate in the human body and the environment, and are not known to degrade in the environment. Studies have linked the chemicals to health issues.

The recently-passed House bill, H.R. 2467, which has bipartisan support, is now pending in the Senate Committee on Environment and Public Works.

In addition to regulating PFAS under CERCLA, the bill would require the EPA to regulate PFAS under other federal environmental laws. For example, the EPA would have to determine whether PFAS should be designated toxic pollutants under the Clean Water Act, and would be required to establish a national primary drinking water regulation for PFOA and PFOS under the Safe Drinking Water Act within two years. The EPA would also have to add PFOA and PFOS to the list of hazardous air pollutants under the Clean Air Act, regulate the disposal of PFAS waste under the Solid Waste Disposal Act, and require toxicity testing under the Toxic Substances Control Act.

Meanwhile, the EPA has taken a number of steps recently to regulate PFAS within the existing statutory structures. The EPA has made clear its commitment to help reduce the potential risks to the public from PFAS. In April 2021, EPA Administrator Michael Regan announced the creation of an EPA Council on PFAS to strategize the best way to mitigate and reduce PFAS pollution in our communities.

In June 2021, the EPA published a proposed rule that would impose reporting and record-keeping requirements for PFAS under the Toxic Substances Control Act. The rule would require all manufacturers (including importers) of PFAS in any year since 2011 to report information related to PFAS uses, production volumes, disposal, exposures, and hazards. According to the EPA, the proposed rule would help the EPA better understand the sources and quantities of PFAS manufactured in the United States.

In another action, the EPA is proposing to include thousands of PFAS in the latest iteration of the Safe Drinking Water Act list of candidates for future regulation. The proposed contaminant candidate list, released on July 12, 2021, is a list of contaminants that are currently not subject to any proposed or promulgated national primary drinking water regulations, but are known or anticipated to occur in public water systems. 

The federal government’s recent activity joins the growing regulation of PFAS by states. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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