Washington, D.C. (January 3, 2020) - Action on per- and polyfluoroalkyl (PFAS) substances continued until the last days of 2019 and shows no chance of slowing in 2020. Congress vigorously debated federal regulation of PFAS compounds throughout 2019 and at year’s end agreed on a major PFAS-related compromise in must-pass defense legislation. Meanwhile, the Environmental Protection Agency (EPA) continues to implement its PFAS Action Plan and both state regulation and active litigation on PFAS chemicals promise to increase in the new year. Current and former users of these chemicals should closely monitor these developments throughout 2020 and evaluate potential regulatory or litigation risks stemming from prior manufacture or use of PFAS chemicals.
In the waning days of 2019, the U.S. House of Representatives (House) and U.S. Senate (Senate) agreed to a compromise involving PFAS-related provisions in the 2020 National Defense Authorization Act (NDAA), which authorizes the annual budget, programs, and policies of the Department of Defense (DOD). Although the bill is considered critical legislation, for much of 2019, it was held up due to disagreements between the House and Senate over PFAS provisions various legislators proposed. For its part, the House-passed NDAA included language designating all PFAS compounds as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The House also would have required EPA to set a maximum contaminant level under the Safe Drinking Water Act (SDWA). The two provisions were not included in the Senate-passed version of the bill.
After several months of negotiations, the two provisions were ultimately dropped. The final NDAA contains PFAS requirements obligating DOD to phase out PFAS in firefighting foam by October 1, 2024, and clean up PFAS contamination resulting from DOD activities. The enactment also directs EPA to add several PFAS compounds to the Toxics Release Inventory (TRI), accelerate PFAS drinking water monitoring, and issue guidance on the destruction and disposal of PFAS-containing materials. President Trump signed the 2020 NDAA on December 20, 2019.
While the final NDAA omitted the most controversial PFAS provisions, it is all but certain that some members of Congress will continue to advance these policies through 2020. A letter sent by 69 House members to the NDAA Conference Committee urged the Conference Committee to maintain strong PFAS-provisions in the final NDAA. A previous letter, signed by 162 members, asked the Conference Committee members to maintain the House-passed PFAS provisions. These communications reflect continuing support for Congressional action on strong PFAS federal regulations that utilize multiple environmental statutes such as CERCLA and the Clean Water Act.
The Administration also ended the year with notable PFAS action. On December 20, 2019, EPA released “Interim Recommendations for Addressing Groundwater Contaminated with PFOA and PFOS.” These recommendations provide guidance for cleanup of contaminated sites under CERCLA and the Resource Conservation and Recovery Act (RCRA). The guidance recommends a screening level of 40 parts per trillion (ppt) to determine if PFOA and/or PFOS are present at the site and warrant further evaluation, and a 70 ppt preliminary remediation goal for contaminated groundwater that may be a source of drinking water.
In 2020, EPA is expected to finalize a proposed regulatory determination for PFOA and PFOS under the SDWA and initiate a rulemaking to add certain PFAS compounds to the list of chemicals subject to mandatory reporting under the Emergency Planning and Community Right-to-Know Act. As the first term of the Trump Administration comes to a close, the EPA will undoubtedly act on further implementing its PFAS Action Plan, continue testing for PFAS contamination, and conduct additional research on the potential impact of PFAS contamination on human health.
As the debate over federal regulation continues in Congress and regulatory proposals move through the rulemaking process, states are filling a perceived quick-action void by proposing or implementing statewide limits on certain PFAS chemicals in drinking water. Some states are also initiating litigation against legacy manufacturers of PFAS, alleging groundwater contamination, and at the same time private plaintiff lawsuits are proliferating (and a Products Liability Multi-District Litigation Panel for fire-fighting foam has already been established). This large-scale litigation may lead to costly settlements affecting both original producers and downstream PFAS users, potentially attracting even more lawsuits amid intensifying press coverage.
Increased public awareness and evolving federal and state regulations resulted in a widespread debate over PFAS contamination and regulations in 2019. Congressional and state action, high-profile litigation, and the end of the first term of the Trump Administration will undoubtedly keep the spotlight on PFAS chemicals well into 2020. Interested parties should assess their legal vulnerability and readiness to comply with enhanced regulation, engaging with federal and state authorities as appropriate