On July 21, the US House of Representatives passed the "PFAS Action Act of 2021," H.R. 2467, by a vote of 241–183. The legislation, introduced by Representatives Debbie Dingell (D-MI) and Fred Upton (R-MI), provides a comprehensive, stringent framework for the regulation of 9,252 per- and polyfluoroalkyl substances (PFAS). Last Congress, a nearly identical bill (H.R. 535) passed the House by a vote of 247–159, but was never considered by the then-Republican controlled Senate. Notably, votes in favor of the bill decreased slightly this Congress, despite the growing congressional interest in PFAS-related matters in recent years, as discussed in a prior client alert.
H.R. 2467 includes provisions that:
- Designate two specific PFAS (PFOA and PFOS) as "hazardous substances" under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and as "hazardous air pollutants" under the Clean Air Act;
- Impose a five-year moratorium on production of new PFAS under the Toxic Substances Control Act (TSCA);
- Mandate that the Environmental Protection Agency (EPA) conduct comprehensive toxicity testing on all PFAS within five years;
- 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 and other consumer products; and,
- Require promulgation of a national primary drinking water regulation for certain PFAS.
Prior to its passage in the full House, H.R. 2467 was considered by the House Energy and Commerce Committee. Throughout committee deliberations, Republicans raised concerns about the regulatory scope of the legislation, its potential to overwhelm the EPA, and the specter of a "de facto ban" on all PFAS-containing products. Republicans offered amendments to exempt such products from H.R. 2467's requirements in a number of affected industries, including drugs and medical devices regulated by the Food and Drug Administration, semiconductors, aerospace components, lithium batteries, and protective gear used by military personnel and first responders. All these amendments were defeated along party lines in committee, and none were made in order for debate on the House floor for procedural reasons. Ten Democratic amendments were made in order and adopted by the full House. Those measures, among other things, addressed additional PFAS reporting requirements, a mandate that information on health risks and contamination be made publicly accessible, and the creation of new federal funding streams for testing and remediation.
In addition to H.R. 2467, the House this year has passed PFAS-related language as part of its broad infrastructure legislation (H.R. 3684, the "INVEST in America Act"). That legislation contained essentially the Safe Drinking Water Act language contained in the PFAS Action Act.
Neither of these measures has a clear path forward in the US Senate. As a result, it is highly likely that PFAS matters will be a focus of attention in "must pass" legislation for the balance of the year, including during the National Defense Authorization Act (NDAA) process—the bill that annually sets the Department of Defense policy. Last year that legislation included incentives to develop alternatives to fluorinated firefighting foam, a limited procurement ban, and funding for PFAS-specific studies. The annual appropriations process and further "infrastructure" legislation may also offer opportunities to seek enactment of PFAS-related matters.