Overview
On April 13, Representatives Debbie Dingell (D-MI) and Fred Upton (R-MI)—along with 25 other members of the US House of Representatives—introduced the "PFAS Action Act of 2021," H.R. 2467, which will serve as the vehicle for congressional action on per- and polyfluoroalkyl substances (PFAS) this year. The proposal is nearly identical to the text of a bill, H.R. 535, that the House passed in the last Congress by a 247-159 vote, but which stalled before the then-Republican controlled Senate. At a press conference announcing the bill, the authors expressed hope that the PFAS Action Act could fare better now that Democrats hold the majority in the US Senate.
Congressional interest in PFAS-related matters has grown over the last two years. By the numbers, Members of Congress have introduced over 50 bills dealing with a wide variety of PFAS issues, and House and Senate panels have devoted over a dozen hearings and business meetings to concerns about PFAS contamination, particularly as it relates to former or existing Department of Defense (DOD) installations.
To date, actual law-making has been limited. In fact, PFAS-related language has only been signed into law as part of broader legislative packages. Last year, for instance, the National Defense Authorization Act (NDAA)—the bill that annually sets DOD policy—included incentives to develop alternatives to fluorinated firefighting foam, a limited procurement ban, and funding for PFAS-specific studies. Last year's omnibus appropriations bill provided funding to several federal agencies for PFAS-related projects, from reviewing their presence in food packaging to researching health impacts associated with PFAS exposure.
In this Congress, however, standalone PFAS legislation is expected to see some movement, and the PFAS Action Act will serve as the foundation for the House consideration of PFAS policy this year (as it did in the last Congress). Specifically, the bill offers a comprehensive framework for the regulation of PFAS, including provisions that:
- Designate certain PFAS (PFOA and PFOS) as "hazardous substances" under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and as "hazardous air pollutants" under the Clean Air Act;
- Essentially ban the future production of new and innovative PFAS under the Toxic Substances Control Act (TSCA);
- Mandate the Environmental Protection Agency conduct comprehensive toxicity testing on all PFAS;
- Prohibit unsafe incineration of PFAS wastes and places a moratorium on the introduction of new PFAS into commerce;
- Require comprehensive PFAS health testing;
- Create a voluntary label for PFAS in cookware; and,
- Require promulgation of a national primary drinking water regulation for certain PFAS.
Yesterday's press conference did not provide any details on when the legislation may move forward.
Steptoe has fully analyzed the provisions of the PFAS Action Act, and we would be happy to share our observations with you. We are also actively engaged in the legislative process on Capitol Hill and can provide our insights on that front if you are interested.