On July 21, 2021, the United States House of Representatives passed the PFAS Action Act of 2021 (Act) that would require the Environmental Protection Agency (EPA) to take action to regulate two per- and polyfluoroalkyl (PFAS) substances. PFAS are commonly known as “forever chemicals” due to their ability to persist in the environment, including drinking water supply systems, the human body, and in animal populations as well. The use of PFAS chemicals has been widespread throughout the world as a result of their resistance to heat, oil, water, and chemical corrosion, and PFAS are contained in an array of products including fire retardants, food packaging, building materials, medical devices, cleaning products, and non-stick pans, to name a few.
The Act requires the EPA to regulate two PFAS in particular, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS)—the two most widely studied PFAS, which are found in drinking water, solid waste, and air—under a number of existing environmental statutes. In particular, the Act calls for the regulation of PFAS as follows:
- Under the Act, the EPA would be required to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) within one year, and to make a determination as to whether to designate additional individual PFAS compounds or groups of PFAS compounds as hazardous substances within five years;
- The Act would impose a five-year ban on the approval of any new PFAS compounds and require comprehensive toxicity testing on all PFAS substances under the Toxic Substances Control Act (TSCA);
- Requires the EPA to promulgate national drinking water standards for PFOA and PFOS under the Safe Drinking Water Act (SDWA). The Act also requires the EPA to determine whether the drinking water standards should be set for individual or classes of PFAS compounds;
- Within 180 days of the enactment of the Act, the EPA would be required to designate PFOA and PFOS as hazardous air pollutants under the Clean Air Act (CAA), and to determine whether to list other PFAS compounds or groups of compounds as hazardous air pollutants within five years;
- Requires the EPA to promulgate regulations relating to the incineration of PFAS and aqueous film forming foam (AFFF) under the Solid Waste Disposal Act (SWDA);
- Within one year of the enactment of the Act, the EPA would be required to create a voluntary Safer Choice labeling system for certain consumer goods manufactured without PFAS;
- Requires the EPA to consult with the heads of certain federal agencies to issue guidance on minimizing the use of firefighting foam and related equipment containing PFAS by firefighters, police officers, paramedics, EMTs, and first responders;
- Requires the EPA to establish effluent standards in accordance with the Federal Water Pollution Control Act (FWPCA) for certain classes of industrial wastewater discharges containing certain PFAS compounds;
The fate of the Act is now in the hands of the Senate, although the bipartisan support from the House gives lawmakers optimism that the regulation of PFAS may be here in the near future. The Act would affect numerous companies and industries that have even a tangential connection to PFAS chemicals. Understanding the stringent requirements is critical as liability for PFAS, whether it is used directly or indirectly, will expose companies to increased liability under the various environmental statutes listed above. Accounting for more stringent regulations of PFAS is a must for every business.