Chemicals, Regulatory Developments

Comprehensive PFAS Bill Passed by House of Representatives

By a vote of 247 to 159, the House passed the PFAS Action Act of 2019 (H.R. 535). The bill would amend five environmental statutes—the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund), Safe Drinking Water Act (SDWA), Toxic Substances Control Act (TSCA), Clean Air Act (CAA), and Emergency Planning and Community Right-to-Know Act (EPCRA)—by requiring that the EPA take actions to regulate per- and polyfluoroalkyl substances (PFAS) and particularly perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), the two most commonly studied PFAS.
Capitol building
Some of the actions described in the H.R. 535’s 18 sections are included in the EPA’s 2019 PFAS Action Plan. But the leading sponsors of the bill say the Agency has been too slow in implementing that plan, and congressional action is needed. The bill passed with bipartisan support—24 Republicans joined 223 Democrats in voting Yea—and was sent to the Senate.

The Persistence Problem

PFAS were developed in the 1940s and eventually comprised thousands of synthesized substances with a great many industrial and commercial applications. PFAS are commonly used in nonstick cookware; water-repellent clothing; stain-resistant fabrics and carpets; some cosmetics; products that resist grease, water, and oil; and as fire suppressants used at U.S. military installations and civilian airports and by state and local fire departments. But research conducted over many years has shown that PFAS have contaminated sources of drinking water. Once these chemicals enter the human body, they stay there for up to 8 years by some estimates. While research is not conclusive, studies have produced evidence that certain PFAS may affect growth, learning, and behavior of infants and older children; lower a woman’s chance of getting pregnant; interfere with the body’s natural hormones; increase cholesterol levels; affect the immune system; and increase the risk of cancer.

Congress Complains

“Last year, EPA announced its PFAS Action Plan,” said Frank Pallone (D-NJ), chair of the House Energy and Commerce Committee, in his floor statement on the bill. “It was woefully inadequate, and since that time, we’ve learned that EPA is not even keeping the weak commitments it made in that plan. The EPA failed to meet key end-of-year 2019 deadlines. It failed to produce a regulatory determination for PFOA and PFOS in drinking water. It failed to produce hazard determinations for these two chemicals under Superfund. And it failed to initiate reporting under the Toxics Release Inventory [TRI].”

Hazardous Designation, Toxicity Testing, and More

H.R. 535 would require implementation of those three actions and much more. Here are more specifics:

  • The bill designates certain PFAS as hazardous substances, thereby requiring remediation of releases of PFAS into the environment under the Superfund program. Within 5 years, the EPA must determine whether the remaining PFAS should be designated as hazardous substances, individually or in groups.
  • Under TSCA, the EPA must require that comprehensive toxicity testing be conducted on all PFAS. Rules would require the development of information by any person who manufactures, processes, or intends to manufacture or process a PFAS.
  • Currently under TSCA, unless requirements for an exemption are met, persons planning to manufacture a chemical substance not listed on the EPA’s inventory list or to manufacture or process a chemical substance for a significant new use must comply with certain notification requirements. The bill prohibits PFAS from being exempted from these requirements.
  • For 5 years, the EPA would prohibit the manufacture, processing, and distribution of a PFAS not listed on the TSCA inventory or the manufacture or processing of a PFAS for a significant new use.
  • Under the SDWA, the EPA would promulgate a national primary drinking water regulation for certain PFAS.
  • The EPA would include certain PFAS in the list of unregulated contaminants to be monitored by specified public water systems and to be included in the national drinking water occurrence database.
  • The bill would add specified PFAS to EPCRA’s TRI, thereby requiring entities subject to the TRI requirements to report information related to their handling of those PFAS.
  • Under the CAA, the bill would require that the EPA issue a final rule adding PFAS to the list of hazardous air pollutants and revise the list of air pollution sources within 365 days after issuing the rule to include categories and subcategories of major sources and area sources of PFAS.

Other parts of H.R. 535 would direct the EPA to regulate disposal procedures for materials containing PFAS or aqueous film-forming foam; require the Agency to revise the Safer Choice Program to include a requirement that pots, pans, or cooking utensils do not contain a PFAS; and also have the EPA issue guidance on minimizing first responder use of firefighting foam and other related equipment containing any PFAS without jeopardizing firefighting efforts.