On November 20, 2019, the “PFAS Action Act of 2019” (H.R. 535) (the “PFAS Bill”) passed the House Committee on Energy and Commerce. The PFAS Bill, eighteen subchapters long, says a great deal: most importantly, one year after its enactment, perfluorooctanic acid and its salts (“PFOA”) and perfluorooctanesulfonic acid and its salts (“PFOS”) will be designated as “hazardous substances” under section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”).
PFOA and PFOS are members of the broad family of per- and polyfluoroalkyl substances commonly referred to as “PFAS.” PFOA, PFOS, and some other members of the PFAS family have been used in a wide range of consumer products and industrial applications since their introduction in the 1940’s and are now the subject of significant regulatory action and public attention. Despite being pervasive in the environment, PFAS have been largely unregulated until recently. This one change under CERCLA will trigger significant litigation and greatly expand the scope and costs of cleanups across the country.
This Client Alert discusses not only the status of the PFAS Bill, but also how its passage may impact companies that currently use and historically used PFAS chemicals or products that were manufactured using the chemistry, as well as communities where PFAS have been found in the environment. The PFAS Bill combines a number of earlier proposals and is being heralded as a comprehensive plan to regulate PFAS. If passed, the proposed changes could significantly regulate the manufacture, use, disposal, processing and distribution of PFAS and PFAS-containing materials, including for at least five years a moratorium under Toxic Substances Control Act (“TSCA”) on the manufacture, processing and distribution of new PFAS or an existing PFAS that the EPA has determined will be put to a significant new use.
The PFAS Bill proposes to amend existing laws that regulate water discharges, water supplies, water bodies, air emissions, disposal of waste, remediation of waste, cleanups/recovery of response costs, reporting and data collection.
The House Committee on Energy and Commerce recently voted (31-19) to pass the PFAS Bill. Next, it will be debated and voted on in the entire House of Representatives, and if approved by the House, sent to the U.S. Senate. No date has been set for it to reach the House floor, but pundits speculate it may be before the close of this year.
Importantly, the movie Dark Waters came out November 22nd (California and New York) and will be released nationally November 27th. Mark Ruffalo stars as an environmental attorney who investigates the PFAS contamination in Parkersburg, West Virginia, associated with a facility that made Teflon. It is speculated that committee approval of the PFAS Bill was coordinated with the release of the film.
The PFAS Bill, as currently written, covers a number of things, including amending many key environmental statutes. Some of the primary components are as follows:
Numerous businesses and trade organizations oppose the PFAS Bill. On November 19, 2019, these companies and others composed a letter in opposition.
A portion of the letter states the following: “Any federal action should not address PFAS as a class, be based on sound science and the weight of the scientific evidence, and not predetermined outcomes. Further, Congress should not circumvent existing regulatory authorities. EPA, as well as other relevant agencies, should retain their traditional power to study PFAS and determine whether to regulate certain PFAS.”
This PFAS Bill is still a long way from becoming a law, but it is vital for you to know about its existence, and ultimately, its support. If passed, it could potentially revolutionize the way PFAS contamination is currently managed in this country.