Federal and State Legislative Activity Continues on PFAS

Federal and state lawmakers continue to advance legislative efforts to address per- and polyfluoroalkyl substances (PFAS). PFAS have been used in a variety of consumer products and industrial processes and are often recognized for use in nonstick cookware, waterproof apparel, and fire-fighting foam. The U.S. House of Representatives voted this week to pass legislation that would further regulate PFAS. In a bipartisan vote of 241 to 183, lawmakers advanced HR 2467, the PFAS Action Act of 2021, which would impose federal requirements to address PFAS under many environmental statutes, including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Clean Water Act (CWA), the Clean Air Act (CAA), the Safe Drinking Water Act, and the Toxic Substances Control Act.

Notably, the bill directs the Environmental Protection Agency (EPA) to designate two PFAS, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under CERCLA and to determine whether the thousands of other PFAS compounds also should be designated as hazardous substances — triggering cleanup and other regulatory obligations. In addition, HR 2467 would require EPA to establish national drinking water standards for PFOA and PFOS as well as other PFAS. EPA has already initiated the regulatory process for establishing a national drinking water standard for PFOA and PFOS, which the act would supersede and accelerate. EPA would also be directed to issue a rulemaking to list PFOA and PFOS as a hazardous air pollutants under the CAA within six months and to determine whether PFAS should be designated a toxic pollutant under the CWA, which would subject industrial users to discharge limits into waters of the U.S., among other requirements.

The act now proceeds to the U.S. Senate for consideration. A similar bill passed the House last Congress but failed to gain traction in the Senate. While there has been no official word from Senate leadership, the Biden administration has publicly stated its support, and the Senate is expected to put the bill to a vote.

This federal action follows various state governments’ taking recent action to increase restrictions on PFAS in consumer and commercial products. Earlier this month, in one of the broadest state actions concerning PFAS to date, Maine enacted a law that will ban the use of a wide range of PFAS in all consumer products by 2030, with an exception for uses deemed “currently unavoidable.” The Maine law carries additional obligations to report use of PFAS in consumer products to the state environmental agency starting in 2023. Earlier this week, Connecticut enacted a more modest law concerning PFAS in firefighting foam and food packaging, similar to requirements in many other states, that goes into effect in 2023. Michigan has introduced a similar bill on PFAS in food packaging. Regulated entities that manufacture, import, process, or use PFAS in through processes or products should expect continued attention from state governments to PFAS.

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