In the face of accelerating EPA and state regulatory activity on per- and polyfluoroalkyl substances (“PFAS”), Congress is pressing forward with measures that would address or impose limitations on these “forever chemicals," reported The National Law Review.
More than 30 legislative measures are 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.
The PFAS Action Act of 2021, passed by the House last month by a vote of 241-183 is among the most comprehensive measures. The measure is now pending in the Senate before the Committee on the Environment and Public Works. The path forward for this bill in the Senate is uncertain, but the PFAS provisions of this proposed legislation may be incorporated into other measures such as those addressing infrastructure, 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;
- 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.
The PFAS Action Act of 2021, is substantially similar to the PFAS Action Act of 2019, which was passed by the House during the past legislative session but was ultimately not enacted. However, during the past legislative session, Congress approved a number of PFAS legislative measures in the National Defense Authorization Act (NDAA) for Fiscal Year 2020, an expansive and “must pass” bill viewed by policymakers as a reliable means for a variety of initiatives. The precedent of using a “must pass” bill to impose PFAS regulatory mandates may be followed this legislative session. In any case, entities that may have come into contact with PFAS, whether through production, distribution or use, would be well-served to closely monitor these legislative developments.
Read the entire National Law Review article about Congressional legislation pertaining to PFAS at https://www.natlawreview.com/article/congress-presses-forward-pfas-measures
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