Federal PFAS Regulation Around the Corner?

The Senate and House both are considering Per- and polyfluoroalkyl substances (PFAS) regulations this summer. Last month, the Senate began inching closer to consensus on certain regulations. Following two hearings in the Senate Environment and Public Works Committee, the PFAS Release Disclosure Act was considered in committee and filed as an amendment to S. 1790, the National Defense Authorization Act heading to the Senate floor.

The Senate PFAS legislation would require reporting of PFAS releases as part of the Toxic Release Inventory Reporting program, address existing contamination and require promulgation of drinking water standards for PFAS under the Safe Drinking Water Act, among other points. The final Senate package, however, does not address other key proposals, including the listing of PFAS as a “hazardous substance” under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

Notably, the House version of the National Defense Authorization Act (H.R. 2500) passed the House on July 12, 2019. This bill included numerous amendments addressing PFAS. The final bill contains PFAS provisions similar to those in the Senate bill, but conflicts in the areas of discharge limits. The House bill mandates the Clean Water Act discharge limits for PFAS, but does not require new drinking water standards. Most significant, the House approved an amendment that would require EPA to list all PFAS compounds as hazardous substances under CERCLA. The Senate bill does not contain this key provision.

The importance of the hazardous substance provision under CERCLA lies with its effect on liability. If PFAS compounds are listed as hazardous substances, they become subject to CERCLA’s broad liability scheme, which makes past and present owners, operators, arrangers, and transporters liable for the cost of cleanup. The House provision would expand the EPA’s ability to recover CERCLA response costs from potential responsible parties, while the Senate bill would not.

The dueling bills show that perhaps the federal government may finally decide to show up to the PFAS party and join certain states who’ve been leading the charge in trying to regulate and legislate these compounds. Regardless, for the foreseeable future, the regulatory uncertainty and state patchwork throughout the country continues.

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