PFAS Legislation in 2021 and Impact in 2022 – Environment

United States: PFAS legislation in 2021 and impact in 2022

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What are PFAS?

Per-and-polyfluoroalkyl substances (PFAS) are a broad class of highly stable man-made chemicals. PFAS exhibit both grease-repellent (lipophobic) and water-repellent (hydrophobic) properties due to their unique chemical structure. By being both hydrophobic and lipophobic, PFAS has made excellent coatings for creating “non-stick” surfaces on consumer products and industrial components. This unique and very useful property has made PFAS ubiquitous in products. However, these same properties make PFAS resistant to environmental degradation. PFAS also escape most current water treatment filters. As a result, PFAS substances have been accumulating for decades, and chronic exposure is now linked to a host of negative health effects, including certain types of cancer. With growing awareness of the toxic qualities of PFAS, federal and state governments have begun to implement various measures to regulate PFAS pollution.

PFAS Action Act of 2021

In April 2021, the House of Representatives passed, with bipartisan support, the PFAS Action Act 2021, the most comprehensive PFAS legislation to date. The legislation calls for broad regulatory action related to PFAS under all major environmental laws, including:

  • Require the EPA to establish drinking water standards for two PFAS compounds – PFOA and PFOS – within two years;
  • Designate PFOA as a “hazardous substance” under CERCLA within one year;
  • Require EPA to determine whether all PFAS should be classified as “hazardous substances” under CERCLA within five years;
  • Require the EPA to publish drinking water standards under the Safe Drinking Water Act for at least PFOA and PFOA, as well as standards for other PFAS compounds.
  • Require the EPA to designate PFOA and PFOS as “hazardous air pollutants” under the Clean Air Act within six months; and
  • Create effluent regulations under the Water Pollution Control Act.

While the bill is pending in the Senate, the Environmental Protection Agency (EPA) has already taken steps to implement many of the bill’s mandates. The EPA has initiated rulemaking processes to designate certain common PFAS compounds as hazardous waste under RCRA and CERCLA. Additionally, several states, such as California, have also begun regulatory efforts alongside federal efforts.

Outlook for 2022

A new year potentially brings Congress closer to passing comprehensive environmental regulations on PFAS. The fate of the 2021 PFAS Action Act is unclear now that it sits in the upper house of congress. However, the EPA will likely take significant action on PFAS regardless of comprehensive legislation. The EPA is expected to open for public comment on its development of rules designating PFOA and PFOS as hazardous substances under CERCLA in 2022, with a final rule potentially taking effect at the end of the year. For the development of rules under the RCRA, the public comment period is expected at the end of the year and a final rule may come into force in 2023. New rules concerning water quality standards on a number of PFAS compounds are also expected. These new rules will create complex environmental remediation liability and litigation issues for potentially liable parties.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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