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PFAS Action Act Would Reinforce, Accelerate Current Priorities

May 19, 2021, 8:01 AM

The PFAS Action Act, introduced April 13 by Reps. Debbie Dingell (D-Mich.) and Fred Upton (R-Mich.), is a bipartisan bill that directs the Environmental Protection Agency to enact multiple significant regulations related to per- and polyfluoroalkyl substances (PFAS). The bill largely mirrors legislation approved by the House in the last session of Congress in a 247-159 vote. Proponents are optimistic that the new Congress may be able to advance it into law this session.

Key Provisions

PFAS are a group of thousands of chemicals used in consumer and commercial products for their heat resistance and ability to repel moisture, oil, and grease, among other properties. The most sweeping proposals in the bill concern the two most studied PFAS compounds—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—but certain provisions apply more broadly.

If passed, the bill would require the EPA to promulgate PFAS regulations by certain deadlines, including, in part:

  • Establishing a national drinking water standard under the Safe Drinking Water Act (SDWA) for PFOA/PFOS within two years;
  • Determining whether to list PFOA/PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) within one year, and all other PFAS compounds within five years; and
  • Designating PFOA/PFOS as “hazardous air pollutants” under the Clean Air Act (CAA) within six months.

Other significant provisions include an annual $200 million grant to water utilities to treat PFAS in wastewater over four years; limiting industrial releases of PFAS under the Clean Water Act; prohibiting incineration of PFAS waste under the Solid Waste Disposal Act; voluntary labeling for PFAS in cookware products; requiring comprehensive toxicity testing of PFAS under the Toxic Substances Control Act (TSCA); and imposing a five-year moratorium on approvals of new PFAS uses under TSCA.

Apart from the doubling of the annual grant to water utilities, the 2021 bill is nearly identical to the prior legislation.

Significance of the Proposed Legislation

The proposed legislation aligns with the Biden administration’s environmental priorities and “whole-of-government” approach to environmental regulation. Candidate Biden had pledged to prioritize the study and regulation of PFAS, and President Biden’s actions to date are consistent with that pledge.

For example, the administration’s proposed infrastructure bill would dedicate $10 billion toward PFAS monitoring and remediation, while its fiscal 2022 budget earmarks $75 million toward PFAS research. New EPA Administrator Michael Regan echoed this commitment at his Senate confirmation hearing, pledging to make PFAS an agencywide priority by designating PFAS hazardous substances, setting discharge limitations, prioritizing substitutes through procurement policies, and accelerating toxicity research.

While the legislation would compel the EPA to take action on PFAS in a relatively short time frame, the agency has already made progress in implementing its PFAS action plan—first issued in February 2019 and updated in 2020—which adheres closely to the legislation’s goals. To date, the EPA has (among other things) established an “EPA Council on PFAS”; issued groundwater cleanup guidance for PFOA/PFOS; taken steps to develop a national drinking water regulation for PFOS/PFOA; issued final guidance under TSCA addressing new uses of certain PFAS compounds; begun the regulatory process for potentially listing PFOA/PFOS as “hazardous substances” under CERCLA; and validated new analytical methods for PFAS testing in drinking water.

Practical Impact

Given the work already being undertaken by the EPA, much of the bill’s practical effect is not necessarily to force the EPA’s hand. Rather, because many of the deadlines in the legislation would occur before January 2025, the bill would lock in the proposed changes to mitigate regulatory whiplash should the 2024 election result in a change in leadership.

The deadlines in the bill would also effectively truncate some of the existing rulemaking process requirements and timelines. For example, under the SDWA the EPA has three-and-a-half years (starting February 2021) to propose and then publish a national primary drinking water regulation and maximum contaminant level goals for PFOA and PFOS. Under the PFAS Action Act of 2021, the EPA would potentially have to compress this rulemaking process to two years.

If passed as proposed, PFOA and PFOS would become hazardous substances under CERCLA more quickly than the bill’s one-year deadline. Specifically, the bill requires that those substances be designated hazardous air pollutants (HAPs) under the CAA within six months; but since CERCLA’s definition of “hazardous substances” incorporates HAPs, the one-year CERCLA deadline would effectively be cut in half.

The bill’s tight deadlines also highlight a tension between the administration’s desire to regulate PFAS quickly, and its emphasis on sound science and defensible policies. While the proposed bill does focus on regulation of the more-studied PFOA/PFOS, it could also mandate regulation of certain other PFAS chemicals before the science can catch up.

Apart from setting deadlines, the PFAS Action Act of 2021 leaves the EPA with significant discretion over future PFAS regulation. Among other things, it does not require the phaseout of “non-essential uses” of PFAS, and does not amend the TSCA significant new use rule governing certain PFAS chemicals finalized under the prior administration—both priorities identified by Dingell and the Congressional PFAS Task Force in a Jan. 29, 2021 letter.

Nevertheless, this legislation is emblematic of a sea change in PFAS regulation at the federal level, and a likely harbinger of significant litigation and enforcement activity in the years to come.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Stephanie R. Feingold is a litigation partner in Morgan Lewis’s New York and Princeton, N.J., offices. She defends clients in the energy, telecommunications, consumer products, chemicals, and other industry sectors in environmental, tort and commercial litigation in state and federal courts and in environmental administrative proceedings.

Jeremy Esterkin is a partner in Morgan Lewis’s Los Angeles office who represents clients in high-profile environmental and mass tort litigation. He focuses on environmental crisis management and defends clients in the utility, manufacturing and energy sectors in cases ranging from federal CERCLA actions to state common law tort matters.

Drew Cleary Jordan is an associate in Morgan Lewis’s Washington, D.C., and Princeton, N.J., offices. He represents clients in a variety of complex and bet-the-company commercial, environmental, mass tort matters before U.S. federal and state courts, including appellate courts.

Sarah M. Carter is an associate in Morgan Lewis’s Los Angeles office. She represents clients in complex commercial litigation, consumer class action defense, and environmental and mass tort litigation. Her practice focuses on claims for breach of contract, unfair competition, negligence, and fraud.

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