By: Breanna McKnight
On July 21, 2021, the United States House of Representatives voted to pass H.R. 2467, more commonly known as the PFAS Action Act of 2021. [i] If passed, the bill would require the Environmental Protection Agency (“EPA”) to declare certain polyfluoroalkyl substances (“PFAS”) as hazardous and enact limits on their presence in drinking water.[ii] PFAS are a group of manufactured chemicals that have been around since the 1940s.[iii] They are widely used because they are resistant to grease, water, oil, and heat.[iv] They are most known for their presence in stain-resistant carpet, water-resistant clothing, flame-retardant textiles and furniture, cookware, fast food packaging, and firefighting foam.[v] While there are thousands of different PFAS, two of the most widely used are Perfluorooctanoic Acid (“PFOA”) and Perfluorooctane Sulfonate (“PFOS”).[vi] Many of these PFAS break down slowly and lead to a build up in people, animals, and the environment, which led to their infamous nickname of “forever chemicals.”[vii]
The bill directs the EPA to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”).[viii] Within five years, the EPA would be required to determine if the remaining PFAS should also be designated as hazardous substances.[ix]Additionally, the EPA would be required to determine if PFAS should be designated as toxic pollutants under the Clean Water Act, and if so, establish standards to limit discharges of PFAS from industrial sources into water.[x] Further, the EPA would be required to test all PFAS for toxicity to human health and regulate the disposal of materials containing these chemicals.[xi]
Because of their widespread use and long-lasting nature, surveys from the Center for Disease Control and Prevention (“CDC”) show that the majority of people within the U.S. have been exposed to PFAS in varying degrees.[xii] While low-level exposure might be regarded as relatively harmless, research has indicated that exposure to high levels of certain PFAS can lead to a wide array of adverse health consequences including: reproductive effects, developmental effects, increased risk of cancer, reduced immune system, interference with hormones, and increased risk of obesity.[xiii] Unfortunately, children seem to be the most sensitive to these harmful effects.[xiv]
The bipartisan PFAS Action Act of 2021 passed the House by a vote of 241-183.[xv] In a press release after the bill passed the House, the Energy and Commerce Chairman, Frank Pallone, Jr., and the Environment and Climate Change Subcommittee Chairman, Paul Tonko, issued a joint statement urging the Senate to consider passage “for the sake of Americans’ health and wellbeing.”[xvi] The press release went on to reiterate how the bill would protect Americans’ drinking water from these toxic “forever chemicals,” help clean up contamination, and protect public health.[xvii]
Per a Statement of Administration Policy from the Executive Office of the President dated July 19, 2021, the Biden Administration supports passage of the PFAS Action Act.[xviii] A group of organizations that would be negatively impacted by the legislation, however, voiced their opposition in a Coalition Letter.[xix] They argue that their organizations are capable and committed to taking internal measures to ensure the safety of their employees and communities and that the bill would “delay and complicate” contamination remediation issues.[xx] Organizations that signed the Coalition Letter include American Coatings Association, American Petroleum Institute, National Association of Chemical Distributors, and Plastics Industry Association, in addition to several others.[xxi]
Unfortunately, chemical companies have known about the harmful effects of PFAS for nearly seventy years and have continued to lawfully discharge them into the air and water with no regulatory restrictions.[xxii] As of 2019, PFAS contamination had been found in more than 700 communities in forty-nine states, with data indicating that up to 110 million Americans may have PFAS in their drinking water and food supply.[xxiii] Because these “forever chemicals” have not been designated as “hazardous substances,” federal law does not require water facilities to remove them from tap water or even test for their presence. Further, PFAS manufacturers are not required to clean up PFAS contamination. Thus, it seems unlikely at this point that there will be any voluntary change from these companies that knowingly and willfully pollute our water and environment. The PFAS Action Act of 2021, H.R. 2467, can provide a vital step in combatting the forever problems caused by these forever chemicals.
[i] Ryan Felton, Congress Takes Steps to Regulate PFAS in Water, Consumer Reports (July 21, 2021), https://www.consumerreports.org/toxic-chemicals-substances/congress-takes-steps-to-regulate-pfas-in-water-a4110508196/ [https://perma.cc/JM6J-56XC].
[ii] Id.
[iii] PFAS Explained, EPA, https://www.epa.gov/pfas/pfas-explained (Oct. 18, 2021) [https://perma.cc/J8WG-ZK7U].
[iv] Statement of Administration Policy, Executive Office Of The President (July 19, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/HR2668.SAP-Final.pdf [https://perma.cc/7V5E-N57Q ].
[v] Id.
[vi] PFAS Explained, supra note iii.
[vii] Id.
[viii] H.R. 2467, 117th Cong. (2021).
[ix] Id.
[x] Id.
[xi] Id.
[xii] Our Current Understanding of the Human Health and Environmental Risks of PFAS, EPA, https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas (Oct. 18, 2021) [https://perma.cc/3AES-NU83].
[xiii] Id.
[xiv] Id.
[xv] John Gardella, PFAS Action Act 2021 Moves Forward – But How Significant is the Progress?, The National L. Rev. (Aug. 3, 2021) https://www.natlawreview.com/article/pfas-action-act-2021-moves-forward-how-significant-progress [https://perma.cc/K35D-AJ92].
[xvi] Id.
[xvii] Id.
[xviii] Statement of Administration Policy, supra note iv.
[xix] Coalition Letter on H.R. 2467, the “PFAS Action Act”, U.S. Chamber of Com. (July 21, 2021) https://www.uschamber.com/letters-congress/coalition-letter-hr-2467-the-pfas-action-act [https://perma.cc/HE8U-ZFSN].
[xx] Id.
[xxi] Id.
[xxii] Jared Hayes & Scott Faber, For Decades, Polluters Knew PFAS Chemicals Were Dangerous But Hid Risks From Public, EWG (Aug. 28, 2019) https://www.ewg.org/news-insights/news/decades-polluters-knew-pfas-chemicals-were-dangerous-hid-risks-public [https://perma.cc/A48U-SAJK].
[xxiii] Id.