Efforts by federal lawmakers and regulators to address sites contaminated with per- and polyfluoroalkyl substances (PFAS)—known as "forever chemicals" for their persistent and bioaccumulative properties—have drawn increased attention during the 117th Congress and in the Biden administration. For the third straight Congress, legislation is moving to speed the cleanup of contaminated sites and to expand the Environmental Protection Agency's (EPA) authority to regulate PFAS under several different environmental statutes. The House Energy and Commerce Committee reported comprehensive PFAS legislation to the House of Representatives on June 23, 2021, and the full House could consider the legislation as early as the July work period.
These legislative efforts to expand EPA's authority over (and in some cases force EPA's hand with respect to) PFAS come at the urging of environmental and public health advocacy groups frustrated with what they see as federal inaction on PFAS, and coincide with industry calls for a consistent national approach to halt an increasingly complex patchwork of state regulations. The potential expansion of EPA's authority, set against the backdrop of EPA's already aggressive efforts to address PFAS under existing regulatory frameworks, could increase the litigation exposure of companies that use PFAS materials in their products or simply have PFAS-containing products or wastes at their facilities.
Background
Invented after World War II, PFAS chemicals are in widespread use throughout the world because of their resistance to heat, oil, water, and chemical corrosion. They are used in a vast array of applications and materials, including fire retardants, food packaging, solar and wind turbine components, semiconductor chips, lithium ion batteries, airplane and helicopter components, building materials, medical devices, cleaning products, Kevlar vests, and such myriad consumer products as outdoor apparel and non-stick pans. PFAS are also pervasive in drinking water systems and, given their persistent and bioaccumulative nature, are commonly identified in fish, human, and other animal populations. Possible human health effects of certain PFAS chemicals may include low infant birth weights, immune system impacts, or (in the case of PFOA) cancer.
The Biden Administration and Congress
Following through on campaign promises, the Biden administration has pledged to regulate PFAS chemicals on an expedited basis—a commitment that is reflected in President Biden's political appointments. For example, EPA Administrator Michael Regan comes from North Carolina's Department of Environmental Quality, where he was deeply involved in the state's efforts to address contamination from the PFAS chemical GenX. Secretary of Defense Lloyd Austin (who is well aware of PFAS contamination associated with firefighting exercises and other operations at military facilities nationwide) committed in his confirmation hearing to "pick up the pace" of addressing and remediating PFAS contamination at bases and in surrounding communities. In March, the EPA announced a proposed rulemaking to further the collection and analysis of PFAS. In April, the Administrator created a new EPA Council on PFAS that is charged with better understanding and ultimately reducing the potential risks caused by these chemicals, and, in June, the EPA announced a separate proposed rulemaking to create recordkeeping and reporting requirements for PFAS.
The Biden administration's push for PFAS action is matched by bipartisan support in both houses of Congress to tackle the PFAS problem, with elected officials facing growing constituent pressure to remediate PFAS contamination in their states and districts. Even that bipartisan support will still face an uphill battle in a starkly divided Congress, but chances for legislative agreement increase measurably where lawmakers across the aisle share a common goal motivated by front-page stories of constituent harm.
Recent Congressional Action
On June 23, 2021, the House Committee on Energy and Commerce reported H.R. 2467, the PFAS Action Act of 2021, to the House on a bipartisan basis, with three senior Republicans joining all of the committee Democrats. This bill utilizes several existing environmental statutes to force regulation of PFAS chemicals, including in drinking water, solid waste, and air. Among other things, H.R. 2467 would require PFOA and PFAS to be designated hazardous substances under CERCLA (a move that EPA is already considering, but recently tabled as a "long-term action" in the Spring 2021 Regulatory Agenda) and trigger significant new liabilities for a range of property owners and operators beyond PFAS manufacturers and processors. In addition, the bill would require a national drinking water standard for PFOA and PFOS while also requiring EPA to designate these two chemicals as hazardous air pollutants under the Clean Air Act.
While the Democratic House majority and notable Republican support make passage of the bill through the House likely, possibly as early as July, the fate of H.R. 2467 in the Senate remains uncertain given the 50/50 partisan divide. Nonetheless, a persistent bipartisan desire to act on the PFAS issue means that any of the several "must-pass" bills on the slate in the coming months (for example, bills addressing annual spending, infrastructure, and defense) could prove a vehicle for PFAS-targeted provisions. Furthermore, the Senate Environment and Public Works Committee, now chaired by Senator Tom Carper (D-DE)—a senator with deep connections to the Biden administration and a sharp focus on PFAS issues—holds jurisdiction over the environmental statutes addressed by H.R. 2467. Given his control over this critical committee, Senator Carper will be a crucial player to watch in this space moving forward.
Conclusion
Companies that utilize PFAS directly or even indirectly via their supply chain could face increased liability in the wake of additional EPA regulation and the likelihood of further congressional action to address PFAS. Companies with potential exposure to PFAS liability should account internally for that risk and decide on the merits of engaging in the EPA's administrative rulemaking process and/or the benefits of working to shape ongoing congressional legislative efforts.