Congress Presses Forward on PFAS Measures

The National Law Review | August 20, 2021

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“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.”…

This content provided by the PFAS Project.