PFAS legislation in 2021 and impact in 2022


By: Alec D. Tyra

What Are PFAS?

Per-and-Poly Fluoroalkyl Substances (PFAS) are a broad class of manmade, highly stable chemicals. PFAS exhibit both grease repelling (lipophobic) and water repelling (hydrophobic) properties due to their unique chemical structure. By being both hydrophobic and lipophobic, PFAS made excellent coatings to create “non-stick” surfaces on both consumer products and industrial components. This unique and highly useful property 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 increasing awareness of PFAS toxic qualities, the Federal and State Governments have started implementing 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 piece of PFAS legislation to date. The legislation calls for broad regulatory actions related to PFAS under all major environmental statutes including: 

  • Requiring the EPA to set 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 the EPA to determine if all PFAS should be classified as “hazardous substances” under CERCLA within five years; 
  • Require the EPA to issue drinking water standards under the Safe Drinking Water Act for at least PFOA and PFOA, as well as including 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 started rule making processes to designate certain, common PFAS compounds as hazardous waste under RCRA and CERCLA. In addition, several states, like California, have also begun regulatory efforts alongside federal efforts. 

Outlook for 2022 

A new year potentially brings Congress closer to passing comprehensive environmental regulation on PFAS. The fate of the PFAS Action Act of 2021 is unclear now that it is in the upper chamber of congress. However, the EPA will likely take significant action on PFAS regardless of a comprehensive act. The EPA is expected to open public comments on its rule development 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 rule development under RCRA, the public comments period is expected at the end of the year and a final rule potentially taking effect in 2023.  New rules regarding water quality standards on a number of PFAS compounds are also expected. These new rules will create complex issues of liability and litigation over environmental remediation for potentially responsible parties.  

For more information, please contact an FMG Environmental attorney