On March 14, 2023, the U.S. Environmental Protection Agency (EPA) issued a proposed National Primary Drinking Water Regulation (NPDWR) which, if finalized, would set enforceable limits, known as Maximum Contaminant Levels (MCLs), for six Per- and Polyfluoroalkyl Substances (PFAS). The announcement marks the first time the EPA has proposed to establish a new MCL under the Safe Drinking Water Act in 25 years.

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NOTE: The EPA will be hosting a webinar on this topic on Nov. 2 at 2:00 p.m. EST.

On Oct. 18, 2021, United States Environmental Protection Agency (EPA) Administrator Michael S. Regan announced the EPA’s strategy to address certain per- and polyfluoroalkyl substances (PFAS): PFAS Strategic Roadmap: EPA’s Commitment to Action 2021-2024. The agency set out three broad goals: to invest in research, restrict PFAS pollution, and remediate PFAS contamination.

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On Feb. 20, 2020, roughly one year after announcing its comprehensive per- and polyfluoroalkyl substances (PFAS) action plan, the Environmental Protection Agency (EPA) issued a preliminary regulatory determination under the Safe Drinking Water Act (SDWA) for the two most-studied of the chemicals, perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). This is the initial step in the process of promulgating a National Primary Drinking Water Regulation and imposing an enforceable “maximum contaminant level” (MCL) for the substances – just two of the more than 7,000 so-called “forever chemicals” that are under intense scrutiny from lawmakers and the public.

Read the full GT Alert, “PFAS Update: EPA Begins Process of Developing Drinking Water Limits for PFOS and PFOA.”

On Dec. 11, the House of Representatives passed S. 1790, the National Defense Authorization Act (NDAA) conference report. The Senate followed suit on Dec. 17, bringing an end to protracted negotiations on this annual must-pass legislation. In one of their final acts, conferees agreed to provisions addressing per- and polyfluoroalkyl substances (PFAS). Two major provisions – designation of PFAS as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) hazardous substances and requirements to promulgate PFAS drinking water standards – were left out of the bill.1 Their absence, and the controversy they engendered, have diverted attention from the many significant PFAS provisions that did make it into the final NDAA package. The NDAA represents Congress’ first major response to public concern about these “forever” chemicals, and the NDAA provisions signal that much more is to come from Congress on the subject of PFAS.

The NDAA PFAS provisions are focused for the most part on the Department of Defense (DOD). They require DOD to stop using PFAS in firefighting foam and other applications, and to cooperate with affected communities and begin cleaning up resources contaminated by military PFAS uses. However, two provisions have much broader application.

Read the full GT Alert.

For a refresher on what Per- and polyfluoroalkyl substances (PFAS) are and what Congressional action may mean for stakeholders, see the Greenberg Traurig E2 Law blog from earlier this year.   

As legislative days dwindle, Congress is in a full sprint to pass the National Defense Authorization Act (NDAA) (related blog post), among several other must-pass bills. Controversial issues, such as border wall funding, military actions related to Iran, PFAS, among others, have bedeviled congressional negotiators since the Senate (S. 1790) and House (H.R. 2500) passed their bills in early summer. As Greenberg Traurig reported in July, H.R. 2500 would designate all PFAS (over 5,000 chemicals) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), but S. 1790 does not include similar language.

Both bills contain a variety of provisions addressing PFAS pollution, and there is common ground on most of them between the House and Senate packages, and more generally, broad agreement among Republicans and Democrats that legislation is necessary to address PFAS. However, the CERCLA listing is where consensus breaks down.

This difference between the two bills has emerged as a key sticking point for lawmakers. The Pentagon – which has over 400 sites with PFAS contamination – strongly opposes the CERCLA provision in the House bill, as do many other stakeholders. Interestingly, in a September 10 House Oversight Committee hearing, DuPont announced support for listing two PFAS (PFOA and PFOS) as CERCLA hazardous substances, while other companies have consistently pushed for alternatives, such as EPA rulemaking to determine which (if any) PFAS should be listed as hazardous substances. And, on October 22, 67 House Democrats and 1 Republican announced they would vote against any NDAA package that does not include the CERCLA provision.

Signaling pessimism about the prospects for compromise on remaining issues, Senate Armed Services Committee Chairman Jim Inhofe (R-OK) introduced S. 2731 on October 30, which he has described over the past few weeks as a “skinny” NDAA bill, built around must-pass provisions, and omitting controversial items. Adam Smith (D-WA), Chair of the House Armed Services Committee, has expressed doubts about the viability of a stripped-down NDAA in the House. The new bill does not contain PFAS provisions.

The Controversy

The impact of making PFAs hazardous substances would be immediate and dramatic: a CERCLA listing would expose DOD and other public and private entities to Superfund cleanup liability, including private cost recovery litigation. Recent statements of Senator Inhofe and Rep. Smith suggest that PFAS provisions may not make the cut.

What Happens Next?

The PFAS language in NDAA bills – especially the Senate bill – came directly from still-pending PFAS-specific legislation. Attaching PFAS provisions to a different must-pass bill is, at best, a remote possibility for legislative success, because the controversy over CERCLA provisions will remain in any context. Complicating matters is that there are less than 30 days left with both chambers in session before the end of the year, and with an impeachment inquiry dominating much of the Congressional agenda, PFAS could be pushed further down the list of priorities. That said, bipartisan efforts will continue in 2020 if a solution is not reached by the end of this year.

Meanwhile, EPA continues to implement its PFAS Action Plan, including a promised determination by year-end whether to promulgate drinking water standards for PFOA and PFOS, and a rulemaking (under development) identifying PFOA and PFOS (the oldest and most studied PFAS) as CERCLA hazardous substances.

With PFAS on the radar of Congress and EPA, legislation would be one of the most notable environmental accomplishments of the 116th Congress, if lawmakers can settle their differences and get it across the finish line.

 

 

 

PFAS (perfluoroalkyl and polyfluoroalkyl substances) have been under scrutiny on both sides of the Capitol in recent months, and the Senate made significant headway in late June in reaching consensus on PFAS legislation. Following two hearings in the Senate Environment and Public Works (EPW) Committee this spring, a package was unveiled and quickly considered in Committee on June 19. Championed by EPW Chairman John Barrasso (R-WY), Ranking Member Tom Carper (D-DE), and Senator Shelley Moore Capito (R-WV), S. 1507, the PFAS Release Disclosure Act, was considered in Committee and simultaneously filed as an amendment to S. 1790, the must-pass National Defense Authorization Act (NDAA) that was headed to the Senate floor the following week.

To read the full GT Alert, click here.

˘ Not admitted to the practice of law.

This week the U.S. Food and Drug Administration (FDA) confirmed it had conducted a study finding that certain types of per- and poly-fluoroalkyl substances (PFAS) have entered American food and drinking water supplies; however, “[c]urrent FDA testing has found that most foods have no or very low levels of PFAS.” The FDA’s efforts are ongoing and the FDA launched a new website to summarize its efforts concerning PFAS.

PFAS are a group of chemicals, widely used in commercial and industrial applications for their heat resistance and ability to repel oil and water, that may pose health risks to humans. The health effects (if any), exposure levels and duration of exposure are the subjects of numerous on-going state, federal and independent studies. The EPA has pledged to establish a “maximum contaminant level” (MCL) for two of the most common PFAS chemicals—PFOA and PFOS—but environmental groups, public health advocates and certain states have argued that the federal environmental agency is moving too slowly and have urged Congress and state legislatures to set statutory and regulatory limits for the chemicals. Others argue additional data and human health studies are necessary before establishing a federal MCL.

The news of FDA action first broke after environmental groups obtained FDA presentation slides concerning a study analyzing samples of produce, meat, dairy, and grain products in the Mid-Atlantic region; a significant number of samples contained no detectable concentrations of PFAS. Of the 91 samples collected in 2017, and analyzed in 2019, the FDA represented that 14 samples had detectable levels of PFAS, but the samples were not likely to be a human health concern. According to the FDA, “while PFAS in food occurs primarily through environmental contamination, contamination in areas where food is grown does not necessarily mean the food itself will contain detectable PFAS.”

Samples are currently being taken from a dairy farm, and so far, all samples had detectable levels of PFAS, which prompted the FDA to advise the farm to discard the milk. The FDA is preparing data tables for the dairy samples to post to the new website. Prior sampling of produce, cranberries, seafood, and raw milk taken from 2012 to 2018 showed either no detection of PFAS or that the detectable levels were not likely to be a human health concern. The studies can be reviewed here.

As we have previously reported, certain states (like New Jersey) have already set standards for PFAS, and multiple bills are currently wending their way through Congress. Senate and House committees held hearings in May to consider 20 bills (14 in the House Subcommittee on Environment and Climate Change, 6 in the full Senate Environment and Public Works Committee). The bills with the best shot at passage are those with bipartisan support. They include bills to establish federal enforceable drinking water standards (Maximum Contaminant Levels) for total PFAS (S. 1473 and H.R. 2377), and bills requiring EPA to list PFAS as CERCLA/Clean Water Act hazardous substances (S. 638 and H.R. 535). Other measures would require EPA:

• to list PFAS as toxic chemicals, making them subject to the Emergency Planning and Community Right to Know Act’s Toxics Release Inventory (TRI) reporting program (H.R. 2577);
• to list PFAS as hazardous air pollutants under the Clean Air Act (H.R. 2605);
• to require EPA to regulate PFAS comprehensively under Section 6 of the Toxic Substances Control Act (H.R. 2600).

At the Environment and Public Works Committee hearing on May 22, Chairman John Barrasso identified PFAS as a priority for the Committee in this Congress, but expressed caution about the breadth of some legislative proposals, and the potentially broad new liabilities they could create. He also expressed opposition to bills that would take away or limit EPA’s ability to assess risks and develop standards based on the Agency’s substantive expertise. Congress’ actions so far suggest a high level of interest, on both sides of the Capitol and on both sides of the aisle, but also point to legislation that is likely to grant EPA authority and set ambitious deadlines, rather than interfering with or overruling EPA’s regulatory processes.

Lawmakers in Congress have their sights set on increased regulation of PFAS (per- and polyfluoroalkyl substances).

What are PFAS?

PFAS are a class of widely used chemicals, some of which have been common since the 1940s. They are used in non-stick coatings, stain- and water-repellant fabrics, firefighting foam, and many other applications. Over the past twenty years, evidence has accumulated that some PFAS might pose health risks. PFAS are widely dispersed in the environment, including in surface and groundwater, ambient air, and in the many consumer, commercial, and industrial products that contain them. Most toxicity studies focus on two PFAS – perfluorooctanaoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) – both of which have been voluntarily phased out by U.S. producers and users, although they can still reach the U.S. in imported products. Some of their replacements – known as Gen X PFAS – also might pose health risks, although potential effects are not nearly as thoroughly studied, and may vary widely among the hundreds of Gen X PFAS currently in use.

EPA Actions

In addition to brokering the 2006 agreement that phased out PFOA and PFOS, EPA has conducted and sponsored research, issued health advisories and other guidance, modified and improved testing methods, conducted monitoring for PFAS in drinking water, and sponsored a 2018 national summit on PFAS. However, until recently, EPA has resisted calls to impose enforceable drinking water and other federal environmental standards. After an internal EPA document – leaked in January 2019 – revealed that EPA had no plan to promulgate drinking water standards for PFAS, EPA came under intense criticism from Congress and the public, and  committed to publishing proposed Maximum Contaminant Levels for PFOA and PFOS by the end of the year as part of its PFAS Action Plan.

The 116th Congress

Meanwhile, there are more than two dozen bills currently making their way through Congress that address PFAS in some way. Notable among these are bipartisan efforts:

  • Requiring EPA to list all PFAS as CERCLA hazardous substances (S. 638 and H.R. 535)
  • Requiring the U.S. Geological Survey to perform a nationwide survey of PFAS contamination in water and soils (S. 950 and H.R. 1976)
  • Requiring EPA to promulgate drinking water standards for PFAS (S. 1473)
  • Including PFAS in the Toxics Release Inventory program (S. 1507).

Environment and Public Works Committee Chair Senator John Barrasso (R-WY) has made PFAS a priority for his committee work in this Congress, increasing the chances that PFAS regulatory requirements will be enacted by the 116th Congress.

 

 

 

On April 1, 2019, the New Jersey Department of Environmental Protection (NJDEP) proposed drinking water standards for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) that are significantly more stringent than the federal health advisory of 70 ppt. DEP proposed a maximum contaminant level (MCL) of 14 ppt for PFOA and 13 ppt for PFOS.

PFOA and PFOS – two chemicals in a larger chemical family known as “per- and poly-fluoroalkyl substances” (PFAS) – were widely used for decades in a variety of industrial and consumer applications due to their resistance to heat, water, and oil. In recent years, as detection methods have improved, the chemicals have been found in an increasing number of sites across the country. Due to voluntary phase-outs, the two compounds subject to the most regulatory interest — PFOA and PFOS — are no longer manufactured in the United States, with limited exceptions.

NJDEP’s proposed rulemaking also seeks to add PFOA and PFOS to NJDEP’s List of Hazardous Substances and to set limits for groundwater quality criteria standards to be used in site remediation activities. In the meantime, the interim specific groundwater quality criteria for PFOA and PFOS are currently set at 10 ppt.

Click here to read the full GT Alert.

Today, U.S. Environmental Protection Agency (EPA) Acting Administrator Andrew Wheeler announced from Region 3 in Philadelphia, what EPA is describing as the most comprehensive cross-agency action plan for a chemical of concern in the history of EPA – the Action Plan for per- and polyfluoroalkyl substances (PFAS). The PFAS Action Plan has five primary components:

  1. EPA is moving forward with the process to establish a federal Maximum Contaminant Level (MCL) under the Safe Drinking Water Act for perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA), which will include examination of other types of PFAS. If EPA does in fact adopt an MCL – a lengthy process – that MCL may become an applicable or relevant and appropriate requirement (ARAR) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Remedy selection under CERCLA requires consideration of protectiveness and ARARs. For groundwater, the ARARs are the Maximum Contaminant Level Goals or the Maximum Contaminant Levels. That means, if EPA adopts a federal MCL, it might turn into a de facto cleanup standard for groundwater.
  2. Continuing enforcement actions – EPA is currently involved in eight direct enforcement actions. EPA initiated the regulatory development process for listing PFOA and PFOS as hazardous substances under CERCLA. EPA plans to release interim groundwater cleanup recommendations.
  3. Expanding monitoring by including PFOA/PFOS for the second time on the list of chemical contaminants for the next Unregulated Contaminant Monitoring Rule (UCMR) and considering PFOA/PFOS data for the Toxic Release Inventory.
  4. Expanding research efforts, including fate and transport pathways.
  5. Risk communications.

According to Wheeler, EPA has not set a new MCL since the Safe Drinking Water Act was amended in 1996 and timing remains unclear.