Will Federal PFAS Legislation Become a Reality in a Democratic Congress?

Recently introduced legislation would establish a national standard for per- and polyfluoroalkyl substances (PFAS)...

Recently introduced legislation would establish a national standard for per- and polyfluoroalkyl substances (PFAS). Under the PFAS Action Act of 2021, the Environmental Protection Agency (EPA) would be required to take several regulatory actions regarding PFAS, which are often called “forever chemicals” because they take so long to break down.

Growing Concerns Over PFAS

In the past, PFAS were frequently used in a wide-range of products, including non-stick cookware, firefighting foam, and food packaging. However, studies have found that the chemicals are linked to a number of health conditions, including cancer and low birth weight.

While many U.S. manufacturers have stopped using PFAS in favor of safer alternatives, prior discharges have resulted in very high levels of PFAS in many public and private water systems. According to EWG, more than 320 military sites across the U.S. have PFAS contamination, and more than 200 million Americans may be drinking contaminated water.  

While states like New Jersey have been proactive in setting limits for PFAS, the EPA has not yet taken official action. On February 14, 2019, the EPA released its much-anticipated action plan for addressing PFAS. While the EPA’s PFAS Action Plan outlines both short-term and long-term initiatives, final regulations have yet to be introduced, and the federal government has been criticized for dragging its feet.

PFAS Action Act of 2021

The PFAS Action Act was introduced in U.S. House of Representatives on April 13, 2021 with bipartisan support. The legislation has also been endorsed by several consumer and environmental advocacy groups, including Environmental Working Group, Union of Concerned Scientists, Consumer Reports, Green Science Policy Institute, League of Conservation Voters, Environmental Law & Policy Center, National Wildlife Federation, Natural Resources Defense Council, Food & Water Watch, Safer Chemicals, Healthy Families, and Southern Environmental Law Center.

Among other provisions, the PFAS Action Act would:

• Require the U.S. Environmental Protection Agency (EPA) to establish a national drinking water standard for PFOA and PFOS within two years.
• Designate PFOA and PFOS chemicals as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) within one year and requires EPA to determine whether to list other PFAS within five years.
• Designate PFOA and PFOS as “hazardous air pollutants” under the Clean Air Act within 180 days and requires EPA to determine whether to list other PFAS within five years.
• Require EPA to place discharge limits on industrial releases of PFAS and provides $200 million annually for wastewater treatment.
• Prohibit unsafe incineration of PFAS wastes and places a moratorium on the introduction of new PFAS into commerce.
• Require comprehensive PFAS health testing.
• Create a voluntary label for PFAS in cookware.

Likelihood of Passage

In 2020, the House passed a similar version of PFAS Action Act by a vote of 247-159. However, it failed to advance in the Republican-controlled Senate. The current bill’s likelihood of passage is much higher with Democrat majorities in both the Senate and the House. Whether or not it ultimately becomes law, the PFAS Action Act puts pressure on the EPA and the Biden Administration to take steps to address PFAS contamination, particularly with respect to establishing national drinking water standards. Accordingly, businesses should be prepared for additional PFAS regulations in the near term.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Teddy Eynon, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.