Washington, D.C. (November 11, 2019) - Federal agencies and Congress are taking aggressive new steps to regulate and fund additional research on per- and poly-fluoroalkyl substances (PFAS). Once a relatively unknown family of chemicals widely used for valued flame- and water-resistant properties, PFAS more recently have drawn concern over potential human health impacts and environmental contamination, as the scientific, policy, and legal communities struggle to keep up with a rapidly expanding issue that remains subject to significant knowledge gaps, particularly with respect to less well-studied PFAS compounds. Regulatory and legislative action should be closely monitored, as these developments will have major implications for current and former users of PFAS across many industries, with the potential of business risks relating to both compliance and litigation. Affected parties should consider ways to engage with lawmakers and regulators on PFAS issues.
The Environmental Protection Agency (EPA) has moved on several fronts in recent weeks to continue implementing its PFAS Action Plan (see our previous alerts for more information). On November 8, the EPA announced a 45-day public comment period on proposed new action on five PFAS compounds found in drinking water. These comments will assist the agency in identifying and characterizing potential human health hazards of these five chemicals under the agency's Integrated Risk Information System program. The agency is accepting comments until December 23, 2019.
On September 25, the agency announced two major actions to address PFAS contamination. First, the agency took steps to add PFAS to the Toxics Release Inventory (TRI) list of toxic chemicals. The TRI is a national database that tracks the management of toxic chemicals that may pose a threat to human health and the environment, and a chemical's inclusion on the list triggers certain regulatory obligations. Second, the agency launched a proposal to prohibit several PFAS chemicals from importation into the United States without notification and EPA review under the Toxic Substances Control Act (TSCA). EPA also plans on making regulatory determinations for two common PFAS chemicals, PFOA and PFOS, by January 4, 2021. These determinations may result in placing those PFAS compounds on the Contaminant Chemical List under the Safe Drinking Water Act (SDWA) and resulting regulatory restrictions.
Other Federal Agency Developments
Another federal department, the Department of Defense (DOD), is responding to releases of PFAS at its facilities. DOD has identified 401 active and former military installations with known or suspected PFOA or PFOS contamination, most likely attributable to the use of firefighting foam. In response to this concern, the DOD has created a task force to address potential contamination at military facilities. In addition to the task force, DOD is providing funding for exposure assessment and will begin collecting health data on its firefighting force.
The Food and Drug Administration (FDA) is also undertaking several studies testing for PFAS contamination in a variety of food groups and other actions. Lewis Brisbois's Environmental and Administrative Law Practice Group will publish a separate alert discussing these FDA food developments shortly.
Congress has also been active in recent months. After multiple hearings and much debate, the House and Senate remain deadlocked over how to move forward on PFAS provisions inserted into the National Defense Authorization Act (NDAA), an annual bill that authorizes expenditures for DOD.
PFAS provisions in the House-passed NDAA bill include: 1) requiring the EPA to list PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) within one year; 2) including PFAS on the list of toxic pollutants under the Clean Water Act; and 3) authorizing the DOD to compensate farmers for PFAS contamination of their livestock).
In contrast, the Senate-passed NDAA contains: 1) provisions setting minimum standards for PFOA and PFOS, two of the most common compounds in the PFAS family; 2) language requiring the finalization of a 2015 significant new use rule under the Toxic Substances Control Act; and 3) a requirement that the EPA issue a call for data under the TSCA to obtain historical manufacturing and sales data on PFAS chemicals. After weeks of negotiations without reconciliation of the differing PFAS provisions in the two bills, sponsors introduced a "skinny" NDAA without PFAS language in order to move this "must-pass" legislation forward. Negotiations were still ongoing as of the time of this alert.
In the same time frame, on October 23, the Congressional Research Service (CRS) released a report titled "Federal Role in Responding to Potential Risks of Per- and Polyfluoroalkyl Substances (PFAS)." The report is a comprehensive analysis of the various regulatory mechanisms that the EPA and other federal agencies have utilized to address potential risks of PFAS. This CRS report will undoubtedly be relied upon by lawmakers and federal officials as PFAS regulation progresses.
PFAS regulation is an undeniably complicated matter, with many remaining scientific knowledge gaps, including the relative toxicity of most of the 3,000 to 5,000 different PFAS compounds that have been produced. With the extensive involvement of multiple federal agencies and Congress, the complexity of this issue only promises to grow. As federal agencies step up efforts to regulate these chemicals, current and former users of PFAS face increased legal vulnerability, particularly in light of proliferating state and private plaintiff litigation. Affected parties should take time to review their potential liability for PFAS contamination and consider engaging proactively on these rapidly developing regulatory developments.
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