On November 20, 2019, the “PFAS Action Act of 2019” (H.R. 535) (the “PFAS Bill”) passed the House Committee on Energy and Commerce. The PFAS Bill, eighteen subchapters long, says a great deal: most importantly, one year after its enactment, perfluorooctanic acid and its salts (“PFOA”) and perfluorooctanesulfonic acid and its salts (“PFOS”) will be designated as “hazardous substances” under section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”).

PFOA and PFOS are members of the broad family of per- and polyfluoroalkyl substances commonly referred to as “PFAS.” PFOA, PFOS, and some other members of the PFAS family have been used in a wide range of consumer products and industrial applications since their introduction in the 1940’s and are now the subject of significant regulatory action and public attention. Despite being pervasive in the environment, PFAS have been largely unregulated until recently. This one change under CERCLA will trigger significant litigation and greatly expand the scope and costs of cleanups across the country.

The Potential Impact

This Client Alert discusses not only the status of the PFAS Bill, but also how its passage may impact companies that currently use and historically used PFAS chemicals or products that were manufactured using the chemistry, as well as communities where PFAS have been found in the environment. The PFAS Bill combines a number of earlier proposals and is being heralded as a comprehensive plan to regulate PFAS. If passed, the proposed changes could significantly regulate the manufacture, use, disposal, processing and distribution of PFAS and PFAS-containing materials, including for at least five years a moratorium under Toxic Substances Control Act (“TSCA”) on the manufacture, processing and distribution of new PFAS or an existing PFAS that the EPA has determined will be put to a significant new use.

The PFAS Bill proposes to amend existing laws that regulate water discharges, water supplies, water bodies, air emissions, disposal of waste, remediation of waste, cleanups/recovery of response costs, reporting and data collection.

What’s the Status?

The House Committee on Energy and Commerce recently voted (31-19) to pass the PFAS Bill. Next, it will be debated and voted on in the entire House of Representatives, and if approved by the House, sent to the U.S. Senate. No date has been set for it to reach the House floor, but pundits speculate it may be before the close of this year.

Importantly, the movie Dark Waters came out November 22nd (California and New York) and will be released nationally November 27th. Mark Ruffalo stars as an environmental attorney who investigates the PFAS contamination in Parkersburg, West Virginia, associated with a facility that made Teflon. It is speculated that committee approval of the PFAS Bill was coordinated with the release of the film.

How does the PFAS Action Act of 2019 impact you?

The PFAS Bill, as currently written, covers a number of things, including amending many key environmental statutes. Some of the primary components are as follows:

• CERCLA Proposed Amendments: Not more than five years after enactment, EPA shall determine whether to designate all PFAS, in addition to PFOA and PFOS, as “hazardous substances” under CERCLA. (See §2).
  • Toxic Substances Control Act Proposed Amendments:
  • For five years, prohibits the “manufacture, processing and distribution in commerce” of new PFAS substances and existing PFAS substances for uses EPA has determined, in accordance with TSCA, is a significant new use (unreasonable risk of injury is presumed). (See §4).
  • Mandates that EPA issue a rule to require comprehensive toxicity testing by “any person who manufactures or processes, or intends to manufacture or process” a PFAS substance. (See §3).
  • Requires EPA, by January 1, 2023, to promulgate a rule requiring each person who has manufactured a PFAS substance in any year since January 1, 2011, to submit a report including any relevant PFAS data. (See §10).
• The Safe Drinking Water Act Proposed Amendments:
  • Requires the establishment of national primary drinking water regulations, which, at a minimum, includes standards for PFOA and PFOS, within two years after enactment or follow an alternative procedure set forth in the PFAS Bill. (See §5).
  • Requires all public water systems serving more than 3,300 people and certain public water systems serving less than 3,300 people to test for some PFAS substances and classes of PFAS substances. (See §6).
  • Requires EPA to publish a health advisory for PFAS substances not subject to a national primary drinking water regulation. (See §5).
  • The State Loan Fund and the PFAS Infrastructure Grant Program serving small and disadvantaged communities will be amended to include PFAS substances. (See §§8 and 13).
• Clean Air Act Proposed Amendments:
  • Within 180 days after the enactment, EPA shall issue a rule adding PFAS substances with at least one fully fluorinated carbon atom to the list of hazardous air pollutants. (See §15).
  • No later than 365 days after the final rule is issued, EPA shall revise the list under Section 112(c)(1) of the Clean Air Act to include categories and subcategories of major and areas sources of PFAS listed as hazardous air pollutants. (See §15).
• Solid Waste Disposal Act Proposed Amendments and Related Provision: 
  • Requires EPA to promulgate regulations concerning how PFAS wastes (including fire-fighting foam) are disposed within six months after the date of enactment. (See §16).
  • By one year after the enactment, EPA shall publish interim guidance on the destruction and disposal of PFAS and materials containing PFAS, including the following: (1) soil and biosolids; (2) textiles; (3) spent filters, membranes, resins, granular carbon and other waste from water treatment; (4) landfill leachate; and (5) solid, liquid or gas waste streams. (See §12).
• Safer Choice Program proposed amendments:
  • No later than one year after enactment, EPA shall revise the Safer Choice Standard to identify the requirements for a pot, pan or cooking utensil to meet in order to be labeled with a Safer Choice label. (See §17).
• The Emergency Planning and Community Right-To-Know Act of 1986 (“EPCRA”) Proposed Amendments:
  • The Toxics Release Inventory (“TRI”) is part of EPCRA, a public dataset compiled by EPA. TRI is mandatory program that contains information of nearly 650 toxic chemicals as reported annually by various regulated facilities.
  • Beginning on January 1 of the calendar year before the enactment, EPA shall list PFOA and its salts, PFOS and its salts and certain other PFAS substances on the TRI. (See §9).
  • Beginning on January 1 of the calendar year before the enactment, EPA shall list GenX, PFNA, PFHxS and certain other PFAS substances on the TRI. (See §9).
• This is not intended to cover all provisions in the PFAS Bill. There are additional requirements that should be analyzed depending upon each company’s unique situation.

Who Opposes this PFAS Bill?

Numerous businesses and trade organizations oppose the PFAS Bill. On November 19, 2019, these companies and others composed a letter in opposition.

A portion of the letter states the following: “Any federal action should not address PFAS as a class, be based on sound science and the weight of the scientific evidence, and not predetermined outcomes. Further, Congress should not circumvent existing regulatory authorities. EPA, as well as other relevant agencies, should retain their traditional power to study PFAS and determine whether to regulate certain PFAS.”

Conclusion:

This PFAS Bill is still a long way from becoming a law, but it is vital for you to know about its existence, and ultimately, its support. If passed, it could potentially revolutionize the way PFAS contamination is currently managed in this country.

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