On April 13, 2021, House representatives introduced the PFAS Action Act 2021, a comprehensive 40 page piece of legislation that would require the Environmental Protection Agency (EPA) to take several significant PFAS regulatory actions. Last week, the bill passed in the House by a vote count of 241-183, with 23 Republican members joining Democrats. The bill now moves to the Senate.
While the House action on the bill received significant media attention, a closer look at the likely future of the bill shows that the House passage may have more symbolic significance than actual regulatory significance when all is said and done. Nevertheless, the bill passing the House is a significant step forward for advocates of PFAS regulation – a step that would not have been possible under the Trump administration.
None of the individual mandates in the bill are new proposals in terms of proposed action steps related to PFAS, but the PFAS Action Act 2021 is the most comprehensive federal PFAS bill to date. While the Biden administration campaigned on the promise to enact some of the proposed regulatory steps and Biden’s EPA has already taken steps necessary to implement regulations, the PFAS Action Act 2021 nonetheless adds an element of significant pressure on the EPA and the Biden administration to accelerate PFAS regulations. Now, more than ever, companies of all types, sizes, and positions in the stream of commerce must pay attention to the changes that we predict are coming in the next three to four fiscal quarters.
What Are PFAS and Why Are They a Concern?
Per- and poly-fluoroalkyl substances (“PFAS”) are a class of over 7,000 manmade compounds. Chemists at 3M and Dupont developed the initial PFAS chemicals by accident in the 1930s when researching carbon-based chemical reactions. During one such experiment, an unusual coating remained in the testing chamber, which upon further testing was completely resistant to any methods designed to break apart the atoms within the chemical. The material also had the incredible ability to repel oil and water. Dupont later called this substance PFOA (perfluorooctanoic acid), the first PFAS ever invented. After World War II, Dupont commercialized PFOA into the revolutionary product that the company branded “Teflon.”
Only a short while later, 3M invented its own PFAS chemical – perfluorooctane sulfonate (PFOS), which they also commercialized and branded “Scotchgard.” Within a short period of time, various PFAS chemicals were used in hundreds of products – today, it numbers in the thousands.
The same physical characteristics that make PFAS useful in a plethora of commercial applications, though, also make them highly persistent and mobile in the environment and the human body – hence the nickname, “forever chemicals.” While the science is still developing regarding the extent of possible effects on human health, initial research has shown that PFOA and PFOS are capable of causing certain types of cancer, liver and kidney issues, immunological problems, and reproductive and developmental harm.
What Does the PFAS Action Act 2021 Call For?
The PFAS Action Act of 2021 calls for several significant regulatory actions related to PFAS, including:
Requiring the EPA to set drinking water standards for two PFAS compounds – PFOA and PFOS – within two years;
Designate PFOA as a “hazardous substance” under CERCLA within one year;
Require the EPA to determine if all PFAS should be classified as “hazardous substances” under CERCLA within five years;
Require testing of all PFAS for toxicity to human health under the Toxic Substances Control Act (TSCA);
Require the EPA to issue drinking water standards under the Safe Drinking Water Act (SDWA) for at least PFOA and PFOA (although the bill calls for standards for all PFAS) within two years;
Require the EPA to designate PFOA and PFOS as “hazardous air pollutants” pursuant to the Clean Air Act within six months;
Create labelling requirements for products to signify that they are or are not PFAS-free; and
Create effluent regulations under the Water Pollution Control Act.
While the House did introduce measures to provide a grace period for many of the above requirements by indicating that the EPA may not be able to seek financial penalties or costs for a certain period of time, this provision alone may not be enough to push the PFAS Action Act of 2021 through both the House and Senate. It is likely that significant debate and negotiation will take place on the terms of the Act; however, the bill does add a measure of increased pressure on the EPA and the Biden administration to take action.
How Will PFAS Action Act 2021 Impact Businesses?
Many companies assume that any regulation under the Safe Drinking Water Act, CERCLA, or the other laws mentioned in the PFAS Action Act of 2021 will not impact them. However, this belief provides a false sense of security that must immediately be dispelled. The PFAS Action Act of 2021 seeks to have the EPA take regulatory action related to PFAS with respect to drinking water contamination, industrial effluent discharge, air pollution, and land-based environmental pollution. While many of the bill provisions seek regulations specifically centered around PFOA and PFOS (the oldest and most prolific PFAS), other bill terms seek to have the EPA regulate PFAS as an entire class of chemicals. While very few companies in the United States are still using PFOA and PFOS in any capacity, thousands of businesses are using other PFAS compounds in products or manufacturing processes.
We continue to predict that the EPA, independent of the PFAS Action Act of 2021, will enact at least drinking water standards for PFAS within the next year. Direct industry effluent discharges into water sources (which may not be drinking water sources, but may feed into drinking water sources) will be the low-hanging fruit target for local environmental agencies at the state level. Companies must ensure that they have all permitting in order, and it is advisable that the permitting specifically encompasses PFAS. Failing to do so will cause issues down the line when local environmental regulatory bodies look to determine, even retroactively, who PFAS water polluters are or were, as those agencies seek to hold businesses responsible for the costs associated with cleaning up PFAS in drinking water.
Waste management companies and businesses that send their industrial waste to landfills are also well advised to do a full compliance check. While many companies do not use PFAS directly in their own manufacturing processes, do the parts or other raw materials used in the manufacturing process have PFAS contamination issues? Are landfills doing due diligence to determine if they are accepting PFAS waste? A company could unknowingly send PFAS-laden industrial waste products to landfills, and so these are questions that companies must get answers to. Over time, it is possible that the PFAS may leach out of the landfill and find their way into local water sources. Environmental regulatory agencies will look to these sites, the owners of the sites, and potentially companies sending waste to the sites as responsible parties for PFAS contamination in waterways.
Finally, even businesses having nothing to do with PFAS or manufacturing from which PFAS could be a contaminant need to follow news regarding PFAS regulations. For example, has the property on which your business sits ever had fires that have required a local fire department to extinguish flames using foam (historically, a PFAS containing product)? What did the owner of the site prior to you use the site for? Were there possible PFAS contamination issues stemming from that prior business? Did your due diligence reports and tests when purchasing the property take PFAS into consideration? If PFAS were a contaminant on the land on which your business now operates, local environmental agencies will pursue cleanup costs from any such business regardless of knowledge or intent, and regardless of whether the PFAS issues were the result of a prior company on the site. These investigations and remediations can be extremely expensive and disruptive to businesses.
The Future of the PFAS Action Act 2021
The PFAS Action Act 2021 now sits in the Senate for debate and consideration. Many rightfully predict that the bill will meet significant resistance in the Senate as compared to the House. Notably, many in the water industry oppose the bill, which is likely to play a significant role in what happens to the bill in the Senate. Our prediction is that the bill will ultimately not pass the Senate.
Last week, several key organizations representing the water sector drafted a letter expressing their objections to the legislation. The key organizations included: the American Water Works Association (AWWA), the Water Environment Federation (WEF), the Association of Metropolitan Water Agencies (AMWA), the National Association of Clean Water Agencies (NACWA), the National Association of Water Companies (NAWC), the National Rural Water Association and the U.S. Conference of Mayors. In part, the letter states:
“On behalf of organizations representing the nation’s municipal governments and drinking water and wastewater systems, we write in opposition to H.R. 2467, the PFAS Action Act of 2021. While we support taking action to reduce the prevalence of PFAS in the environment, the legislation would run counter to the important “polluter pays” principle that guides Superfund site cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and would step back from the transparent, science-based process of regulating drinking water contaminants under the Safe Drinking Water Act (SDWA) and clean water operations under the Clean Water Act (CWA). We urge you to vote against this legislation in its current form.
H.R. 2467 would require EPA to designate PFOA and PFOS as hazardous substances under CERCLA within one year, and to make a determination on designating all remaining PFAS within five years. These hazardous substance designations are intended to make sure polluters are held responsible for paying for the cleanup of contaminated Superfund sites, which we support. But the bill as currently structured would also mean that municipal drinking water and wastewater utility ratepayers could face staggering financial liability to clean up PFAS that was legally disposed of following the water treatment process. We believe water and wastewater utilities, when acting in accordance with all applicable laws, should be provided an exemption to protect the utilities and water customers from bearing the costs of cleanup.”
While the PFAS Action Act 2021 will likely not survive the Senate, its introduction and passage by the House are nevertheless significant events that companies with PFAS discharge issues must not ignore. The bill’s introduction alone increases the pressure on the Biden administration to take action with respect to PFAS, and the House passage of the bill only increases that pressure.
Our prediction remains that in 2022, PFAS drinking water rules will be finalized at the federal level. This will require states to act, as well (and some states may still enact stronger regulations than the EPA). Both the federal and the state level regulations will impact businesses and industries of many kinds, even if their contribution to drinking water contamination issues may seem on the surface to be de minimus. In states that already have PFAS drinking water standards enacted, businesses and property owners have already seen local environmental agencies scrutinize possible sources of PFAS pollution much more closely than ever before, which has resulted in unexpected costs. The PFAS Action Act 2021 adds additional pressure on the EPA to take regulatory action well beyond just drinking water, and companies absolutely must begin preparing now for regulatory actions that will have significant financial impacts down the road.
©2021 CMBG3 Law, LLC. All rights reserved.National Law Review, Volume XI, Number 215