Congressional interest in addressing Per- and Polyfluoroalkyl substances (“PFAS”) continues to build in 2019, as do the odds of a PFAS legislation package eventually passing both houses. Among other things, these bills share a common goal of documenting the scope and impacts of PFAS contamination in the environment. These initial investigations, being called for in the proposed legislative initiatives, may also trigger enhanced water treatment and remediation obligations, with cost recovery and damage litigation to follow. Companies that manufactured, imported, or used PFAS and PFAS-containing products should consider actively engaging on these issues and, where appropriate, evaluate their potential legal vulnerability for environmental contamination liability.
Over 20 new bills have already been introduced this year, covering a broad range of possible approaches to regulating PFAS and addressing its perceived impacts. Three Congressional hearings have also taken place in the past few months. The need to address PFAS appears to be one of the few issues upon which Republicans and Democrats agree.
In what is perhaps the most notable Congressional development to date, a bipartisan package was recently introduced in the Senate Environment and Public Works Committee (“EPW”) by its Chairman, John Barrasso (R-WY), and Ranking Member Tom Carper (D-DE), and Shelley Moore Capito (R-WV). The package is intended to be an amendment to the Senate's 2020 National Defense Authorization Act (S. 1790). EPW advanced the package for full Senate consideration by unanimous vote on June 18, 2019. The Senate is expected to vote on the measure in short order.
The amendment package includes language and ideas from numerous other PFAS bills, including provisions that would:
- Require the U.S. Environmental Protection Agency (“EPA”) to establish drinking water limits for certain PFAS chemicals within the next two years;
- Require the EPA to promulgate a Significant New Use Rule (“SNUR”) under the Toxic Substances Control Act (“TSCA”) and publish guidance on the destruction and disposal of PFAS and PFAS products;
- Require the EPA to include certain PFAS chemicals on the toxics release inventory (“TRI”); and
- Create grant programs to assist communities addressing PFAS drinking water issues and to fund entities researching PFAS issues.
This list is by no means inclusive, and those interested in the laws that will affect future liabilities and responsibilities should seek to understand the entirety of the proposed legislation.
Interestingly, the amendment package does not yet include any provisions that would designate PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). However, the debate over whether to include such a provision is ongoing, and Sen. Gary Peters (D-MI) has introduced a separate amendment to the Senate's 2020 National Defense Authorization Act that would set a one-year deadline for EPA to make a hazardous substance designation. The House may also assert that such language is required for passage, setting up further debate in Conference.
Congress is also taking non-legislative action toward addressing PFAS. Earlier this year, the U.S. Food and Drug Administration (“FDA”) released information on an October 2017 study that detected PFAS in a variety of foods.[1] FDA concluded, however, in a June 11, 2019, statement that there was no indication of any human health concern.[2] The next day, Reps. Chellie Pingree (D-ME) and Rosa DeLauro (D-CT) sent a letter to the U.S. Government Accountability Office (“GAO”) asking it to investigate and address a number of PFAS-related questions, including whether “actions being taken at the federal level [are] appropriate steps to evaluate the prevalence and risk of food contamination.”[3]
As Congress and federal agencies like the EPA and FDA continue to make addressing PFAS a priority, numerous states and municipalities have followed suit, taking action to address PFAS in the nation’s water supplies and in contaminated sites around the country. Some states, including New York and New Jersey have already sought to recover the costs of addressing PFAS. More states and municipalities are likely to follow suit, particularly as more federal PFAS guidance and information becomes available. And as the scale of costs associated with addressing PFAS continues to grow, these governments and other third parties will look for funding from others than the obvious large PFAS manufacturers with dwindling deep pockets and turn their attention instead to companies that have historically used PFAS or PFAS-containing products.
Clark Hill’s PFAS Team is well-versed in the factual, regulatory and legal issues concerning PFAS and experienced in working with clients to develop effective legal strategies and advocacy approaches to anticipate, address and respond to emerging regulatory, legislative, and litigation concerns.
For more information, please contact a member of Clark Hill's Environment, Energy & Natural Resources practice group.
[1] See https://www.fda.gov/food/chemicals/and-polyfluoroalkyl-substances-pfas
[3] See https://pingree.house.gov/uploadedfiles/pingree_delauro_gao_chemicals_in_food_6.12.19.pdf