On June 27, 2019, the United States Senate passed legislation to regulate per- and polyfluoroalkyl chemicals (PFAS) as a rider to the 2020 defense spending bill (S1790). The PFAS amendment, which includes the “PFAS Release Disclosure Act” and the “National Primary Drinking Water Regulations for PFAS,” was brought with bipartisan support and is expected to pass the House in July without significant change.
PFAS chemicals are man-made and are known as “forever” chemicals, due to their ability to build up and persist over time. PFAS chemicals regulated under this bill have long been used to manufacture a wide range of products, like butter wrappers, cookware, pizza boxes, stain repellents and a variety of plastics, rubbers, leather and apparel. In addition, they have been widely used by airports and in the aviation industry as a component of aqueous film forming foam (AFFF). AFFFs are a very effective way to extinguish fires, and are required by the FAA at all certified commercial airports.
Once enacted, the PFAS amendment would have far-reaching implications. For one, manufacturers would be required to report air and water discharges of PFAS chemicals by way of the Emergency Planning and Community Right-to-Know Act of 1986’s Toxic Release Inventory requirements. More specifically, these chemicals include perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), the salts associated with PFOA and PFOS, and various other PFAS constituent chemicals listed on the February 2019 inventory update to the Toxic Substances Control Act. Further, the Department of Defense would be required to phase out PFAS use in its fire-suppressing foam by 2023.
The legislation would also require the EPA to establish safe drinking water limits for PFOA and PFOS under the Safe Drinking Water Act. As a result, public utilities would need to begin testing their respective potable water supplies for PFAS contamination. Finally, within one year of the amendment’s passage, the EPA would be required to publish interim guidance on the destruction and disposal of PFOA and PFOS contaminated materials.
The United States government’s focus on regulating PFAS has been apparent for some time. On top of this pending legislation, it is anticipated that PFAS will be identified as a “hazardous substance” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). CERCLA allows the federal government to force potentially responsible parties—current and past owners/operators, generators, arrangers of disposal/transport of the hazardous substance at issue, and transporters of the substance—to pay for the cleanup of environmental contamination. In addition, a growing number of state governments are taking legal action against companies that manufacture, use or dispose of PFAS. For example, New Hampshire and Vermont have recently filed lawsuits against chemical firms over PFAS.
Because PFOA and PFOS have been used in so many industries for so many years, entities that may be impacted by this new legislation should begin assessing their potential risk now.