July 22, 2021

House Passes Broad Action Addressing PFAS Chemicals

The U.S. House of Representatives passed H.R. 2467, PFAS Action Act of 2021, on July 21. The legislation contains a series of provisions aimed at cracking down on per- and polyfluoroalkyl substances (PFAS) and contamination through required Environmental Protection Agency (EPA) actions. H.R. 2467 passed the House with 23 Republican members joining the Democrat majority in supporting final passage, 241–183. During the 116th Congress, the PFAS Action Act passed the House, but did not receive consideration in the Senate. Now in the 117th Congress, it is unclear if the Senate will take up H.R. 2467 or companion legislation, as it currently remains engaged in negotiations surrounding the bipartisan infrastructure package and Democrat-led budget resolution. The Senate Committee on Environment and Public Works has been working on a number of bills to protect sources of clean drinking water.

What Are PFAS?

PFAS (polyfluoroalkyl substances) are a group of thousands of chemicals used in industrial settings and consumer products. They are human-made compounds that have unique capabilities to provide protection against heat, moisture and other factors that can degrade materials. PFAS are used in products such as flame retardants, protective gear, semiconductor chips, and various medical devices and utensils, to name a few.

What Would the Legislation Do?

Hazardous Substance Designations, Drinking Water Standards and Air Emissions

H.R. 2467 places multiple requirements on EPA to expedite their regulatory rulemaking and authority to set standards for PFAS, a class of more than 9,000 “forever chemicals.” Two of the main types of PFAS focused on in the legislation — perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate acid (PFOS) — have been used in a variety of industries internationally and within the United States since the 1940s. However in the early 2000s, many companies phased out production and manufacturing of these two types of PFAS, and they are no longer manufactured in the U.S.

The legislation would require EPA to designate perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate acid (PFOS) as hazardous substances under the Superfund law, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) within one year following enactment. The legislation would require EPA to implement a national primary drinking water standard for PFAS chemicals within two years, which minimally would include PFOA and PFOS. Both of these actions have been announced by the Biden administration as an extension of the previous administration’s PFAS Action Plan. H.R. 2467 goes much further to regulate PFAS, as it also sets requirements for EPA to issue regulations on the full chemical group and class of more than 9,000 PFAS chemicals, many of which have little known data or research.

No later than five years after the date of enactment, the PFAS Action Act would require EPA to determine if all PFAS chemicals should receive a hazardous substance designation under CERCLA either individually or as groups. Opponents of the legislation claim that giving EPA an overly burdensome timeline for such a large group of chemicals will hinder the agency from making science-based regulatory determinations.

The PFAS Action Act would also require EPA to consider PFAS as an air pollutant for the first time. The agency would need to issue a final rule to add PFOA and PFOS to the list of hazardous air pollutants under the Clean Air Act no later than 180 days after the enactment of the legislation. Within five years, the agency would need to determine whether to expand the list of PFAS chemicals considered hazardous air pollutants.

Manufacturing and Testing

In addition to issuing requirements for CERCLA designations and national drinking water standards, the PFAS Action Act would place a five-year moratorium on the manufacturing of new PFAS chemicals by deeming them to present an “unreasonable risk” to human health or the environment.

Manufacturers would also have to comply with toxicity testing rules and standards. Under the legislation, EPA would require all PFAS manufacturers and processors or anyone intending to manufacture PFAS to conduct thorough toxicity testing of the group of chemicals. The bill would give the agency authority to divide the chemicals into different categories with varying testing requirements based on the nature of their chemical properties or hazardous risks. The agency would issue a proposed rule on the toxicity testing requirements within six months after enactment and a final rule within two years.

Funding and Other Provisions

The PFAS Action Act would authorize $1 billion over five years for grants to owners and operators of publicly owned wastewater treatment facilities in order to help implement a PFAS pretreatment standard. It would also authorize $550 million over five years for a grant program to support the installation of new and existing treatment technologies.

Finally, the PFAS Action Act would require EPA to revise the Safer Choice standard and labeling program to ensure that any covered products with the label attached have no trace of PFAS. It would also create a voluntary label to be used by any manufacturer of a covered product that the EPA administrator has reviewed and determined does not contain PFAS. Covered products under the labeling program include: pots, pans and cooking utensils; carpets, clothing and upholstered furniture; stain-resistant, water-resistant or grease-resistant coatings; food packaging materials; umbrellas and luggage; and cleaning products.

Conclusion

While H.R. 2467 passed the House of Representatives on a bipartisan vote, whether that will be enough to persuade the Senate to act is unclear. The legislation is sweeping and would require action by EPA on a timeline that the agency may not be able to meet. Further, the fact that the legislation was passed on a bipartisan basis does not mean that it is not controversial. There could be concern from some drinking water treatment facilities about skipping the processes already in place to evaluate whether to establish a maximum contaminant level (MCL) for PFOA and PFOS. The Association of State Drinking Water commented at a Senate hearing earlier this year that, “[a]s EPA moves forward …. the Agency must directly engage states (as co-regulators) and involve other stakeholders in each step of the decision-making processes for the proposed regulation, the final regulation, and potential future regulations for other PFAS.” Whether the House bill will allow for the kind of collaboration envisioned by ASDWA is unclear.

Further, the requirement to list PFOA and PFAS as hazardous substances in one year circumvents EPA’s ability to collect and consider public comment before acting. The previous administration had sent an advance notice of proposed rulemaking (ANPRM) to the Federal Register in order to collect data on the implications of a hazardous substance listing and had also requested comment on a hazardous waste listing under the Resource Conservation and Recovery Act (RCRA). By mandating the listing under CERCLA, the legislation limits the ability for public comment to inform the decision making. The result could be unintended consequences in implementation, which may be an issue because EPA has only established groundwater cleanup guidance for PFOA and PFAS. This and other issues may have been the basis of a letter opposing H.R. 2467 signed by the U.S. Chamber of Commerce, National Mining Association, American Petroleum Association, National Cattlemen’s Beef Association and 14 other trade associations. What effect the concern around directing regulation that may not be sufficiently science-based will have in the Senate is unclear. Expect Congress and the administration to continue pursuing legislation and regulatory action on PFAS-containing chemicals and products.

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