Federal PFAS Legislative and Regulatory Developments

January 21, 2020
John F. Gullace, Esq. and Shelby L. Hancock, Esq.
MGKF Special Alert - Federal Forecast 2020

In 2019, Congress considered a variety of proposed bills that touched on a class of emerging chemicals known as per- and polyfluoroalkyl substances (PFAS).  Many of those bills were which were included in early versions of the National Defense Authorization Act for 2020 (NDAA), a piece of must-pass legislation.  After months of negotiations to consolidate the House and Senate versions of the NDAA, Congress released a compromise bill, which President Trump signed into law on December 20, 2019. The compromise NDAA contains fewer PFAS provisions than either the House or Senate versions, and notably, removed provisions which would have required EPA to promulgate drinking water standards for PFAS or to classify any PFAS as hazardous substances under CERCLA.  The Act does, however, add certain PFAS to the Toxics Release Inventory (TRI) of the Emergency Planning and Community Right-to-Know Act and establishes a procedure for EPA to add other PFAS compounds to this inventory.  Importantly, the Act tagged a number of PFAS provisions — including PFOA, PFOS, GenX, PFNA, and PFHxS — for inclusion on the TRI beginning January 1, 2020, which means covered facilities will be required to include those PFAS chemicals in the TRI report that they submit to EPA and relevant states on July 1, 2021.  Although many provisions were removed from the final version of the NDAA, those provisions are likely to resurface in 2020.  Notably, on January 10, 2020, the House passed H.R. 535 — the PFAS Action Act— was re-introduced in the House. 

While Congress negotiated PFAS legislation, EPA moved forward with its PFAS Action Plan, which outlines the agency’s short- and long-term goals for investigating and regulating PFAS compounds.  In November, EPA published advance notice of proposed rulemaking, soliciting information from the public on whether and to what extent EPA should add certain PFAS to the Toxics Release Inventory.  And in December, the agency sent a proposed regulatory determination for PFOA and PFOS in drinking water to the Office of Management and Budget.  The agency also issued interim recommendations for addressing groundwater contaminated with PFOA and PFOS, establishing a screening level of 40 ppt and a preliminary remediation goal of 70 ppt for contaminated groundwater that is a current or potential source of drinking water, where no state or tribal MCL are available.

In 2020, we expect EPA to further expand its regulation of PFAS while legislation is introduced in Congress to move more aggressively.