PFAS Observer
As in 2023, Congress continues to focus on PFAS issues in the first months of 2024. In this 118th Congress, at least 39 bills focused on PFAS have been introduced along with several dozen additional bills that tangentially address “forever chemicals.”
As we noted in an earlier post, the focus of several bills introduced in 2023 was to amend the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). The proposed amendments aimed to create safe harbors from PFAS-related liabilities for certain types of businesses that provide essential services and/or are unlikely to be able to control the extent to which the properties at which they operate are impacted by releases of PFAS designated as “hazardous substances” under the statute. These included municipal solid waste landfills, public water systems, farming operations involving the land application of biosolids, and airports (where firefighting activities routinely occur).
These proposed safe harbors are consistent with informal remarks made by EPA regarding its own proposed application of CERCLA to address PFAS contamination. Nevertheless, they have been strongly resisted by public interest groups, and the debate over liability protections has stalled PFAS legislative activity for months. Last summer, Sens. Tom Carper (D-Del.) and Shelley Moore Capitol (R-WV), the Senate Environment and Public Works Committee Chair and Ranking Member, released draft PFAS legislation and solicited stakeholder comments with the hopes of developing consensus legislation that could advance through the chamber. The draft bill would—among other points—adopt a single definition of “PFAS” (rather than the dueling definition contained in agency and state publications) and support EPA’s plan to set drinking water standards for a subset of PFAS chemicals. However, to date Committee leaders have held off on introducing legislation pending discussions on how to address CERCLA liability exemptions.
More recently, in December, on the House side, a bipartisan group of lawmakers led by Reps. Debbie Dingell (D-MI), Brian Fitzpatrick (R-PA) and Pat Ryan (D-NY) introduced a new bill titled the PFAS Action Act which would establish a national drinking water standard for certain PFAS chemicals, accelerate the designation of perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) as hazardous substances, and provide funding for water utilities and wastewater treatment, among other provisions. Versions of the legislation have been introduced in previous years. The legislation does not include CERCLA liability protections for any industry—a change from previous versions of the bill—meaning that the bill is unlikely to garner support from lawmakers who favor liability exemptions, potentially stalling advancement.
For many months, groups representing the water sector, landfills, and other “passive receivers” have been heavily engaged on Capitol Hill pushing for exemptions at the same time certain environmental groups are advocating to limit exemptions. As a result, instead of moving comprehensive legislation addressing PFAS issues—including liability protections—Congress has instead opted to address PFAS through other major legislative packages. For example, the FY2024 National Defense Authorization Act (NDAA), an annual package authorizing defense-related spending and activities enacted in December 2024, included provisions authorizing the Defense Department to transfer funds to assess the health implications of PFAS in drinking water. More recently, on February 8, 2024, the Senate Commerce, Science, and Technology Committee marked up the FAA Reauthorization Act, the legislation reauthorizing the Federal Aviation Administration, which includes a measure to establish a new DOT grant program for airports to dispose of products containing PFAS.
In the coming months, it is expected that PFAS-related measures will be included in the next NDAA cycle and as part of the annual appropriations process, among other work on Capitol Hill. For Congress to move forward on comprehensive PFAS legislation, however, some consensus on liability concerns for passive receivers will likely be required.
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