Key Takeaways:

  • Congress is considering legislation to invest in mitigating per- and polyfluoroalkyl substances (PFAS) contamination, fund programs and technologies to detect and treat PFAS, and advance national drinking water standards.
  • Throughout 2023, the Environmental Protection Agency (EPA) took significant regulatory action to increase the agency's knowledge and understanding of PFAS.
  • The EPA may be close to finalizing two rules that would establish national drinking water standards for six PFAS and designate PFOA and PFOS chemicals as hazardous substances.
  • Stakeholders must remain in front of these issues as Congress and the Administration are poised to take further action to address PFAS exposure and contamination.

Congressional Activity

The challenges around addressing health concerns related to per- and polyfluoroalkyl substances (PFAS) are immense. The Environmental Protection Agency (EPA) states that PFAS are widely used, long lasting chemicals or components which break down very slowly over time. PFAS can be found in water, air, food, and soil, and many different consumer, commercial, and industrial products. The U.S. Geological Survey estimates that at least 45% of the nation's tap water has at least one type of PFAS. There are thousands of PFAS chemicals, and studies have reported that exposure to some PFAS may be linked to negative health consequences. Congress has spent years reviewing the issue and, in 2024, it appears poised to act, a notable step that is being closely watched by industry and public health stakeholders.

In the Senate last year, Chair Tom Carper (D-DE) and Ranking Member Shelley Moore Capito (R-WV) unveiled bi-partisan, draft legislation for comment on PFAS. The draft legislation would accelerate the EPA's rulemaking process to set drinking water standards for specific PFAS by September 30, 2024; empower states to inventory industry users of PFAS in their states; authorize grant programs to develop treatment technologies for PFAS; establish a definition of PFAS compounds for use at the state and federal level; and direct the EPA to work with public and private stakeholders to create best practices regarding PFAS use, and standards for detection, reduction, and remediation.

A key question before Congress is whether to shield businesses from liability for PFAS contamination, with environmental groups urging Congress not to pass the growing cost onto taxpayers. This will factor into how the Carper-Capito legislation is paid for, as funding will be necessary to close knowledge gaps at the EPA as well as to fund improvements to water and wastewater utilities detection and mitigation of PFAS. The PFAS Action Act of 2023, introduced in December 2023 in the House of Representatives, would accelerate the EPAs review of the currently pending proposed rules and, among other steps, would provide $200M annually for wastewater treatment.

Congress has found a vehicle to address PFAS issues in recent years through the National Defense Authorization Act (NDAA). One such example includes directing the EPA to publish guidance on the destruction and disposal of certain materials that contain PFAS, which include aqueous film-forming foam (where PFAS are ingredients in fire suppressants at military installations, civilian airports, and by state and local fire departments), soil and biosolid wastes, and textiles treated with PFAS, among other sources. The most recent Fiscal Year 2024 NDAA package will require the Defense Department to carry out a pilot program to award entities for developing technology to thermally destroy PFAS materials, among other reporting.

The NDAA is one of few bills that Congress passes every year and should continue to be a vehicle for PFAS policies that compliment or advance PFAS oversight.

EPA Rulemaking

While Congress considers a broader response to the concerns of PFAS, the EPA began last year to address the health concerns related to PFAS through the rulemaking process. Most recently, the agency released its second annual report on PFAS, detailing how the agency will work to prevent and protect communities from PFAS contamination. In March 2023, the EPA proposed establishing legally enforceable levels, or Maximum Contaminant Levels, for six PFAS known to occur in drinking water. In April 2023, the EPA sought public comment regarding potential hazardous substance designations of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Both rules are still under review at the White House Office of Management and Budget, a critical step in the rulemaking process.

In October 2023, the EPA finalized two rules on PFAS, which will impose significant reporting requirements on entities for PFAS under the Toxic Substances Control Act (TSCA). The first October rule will require entities that have manufactured or imported PFAS for commercial purposes in any year since January 1, 2011, to submit information to the agency regarding PFAS uses, production volumes, disposal, exposures, and other information on environmental and health effects. Entities are required to report the required data to the EPA by November 10, 2025. The EPA held a webinar on January 25, 2024, to provide an overview of the rule's requirements.

The second October rule will subject manufacturers of PFAS and entities that use PFAS to reporting under the Emergency Planning and Community Right-to-Know Act and the Pollution Prevention Act to the list of Lower Thresholds for Chemicals of Special Concern. As such, these PFAS are no longer eligible for use of the de minimis exemption, or alternative reporting options.

These reporting requirements will provide the EPA with new data and information about how PFAS are used, released into the environment, and the environmental and health consequences. These rules may help clarify the approach to regulating PFAS, the scope of such regulation, but it may also inform subsequent action from the agency or Congress as key knowledge gaps are addressed through the rulemaking process.

What Comes Next?

With Sen. Carper retiring at the end of this Congress, there may be a push to advance legislation through the committee he chairs, or further Congress' understanding of PFAS issues through other means. Congress reviewed PFAS issues intensely in 2019, holding multiple hearings in both chambers and collecting information from stakeholders, which informed many of the proposals and actions taken in recent years.

As noted by the January 2024 webinar, the EPA is gearing up for a greater presence in this space, and similar activity could follow if the Biden administration finalizes these other pending rules in the coming months. Stakeholders will need to carefully watch this space as momentum builds for further action.

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