Regulating bodies and regulated entities alike are feeling increasing pressure to act on PFAS, the “forever chemicals.” This pressure is coming from all angles as Congress, the courts, and the executive branch reckon with the continually growing and evolving information available on these substances.
In December 2019, the National Defense Authorization Act was signed into law. Included in that extensive document were a suite of new legal obligations, from required monitoring under the Safe Drinking Water Act (SDWA), to reporting requirements for the Emergency Planning and Community Right-to-Know Act as part of the Toxics Release Inventory (TRI), and disclosures under the Toxic Substances Control Act (TSCA). These new legislative requirements put pressure on the EPA to expediently follow through with the contents of the PFAS Action Plan.
Elsewhere in the executive branch, the Department of Defense is under investigation for its response to the PFAS —18 state attorneys general and 31 members of Congress have specifically called out the Department over concerns that not enough has been done to address the public’s concern over the presence of PFAS at military sites. The DOD announced that it will be inspecting sites in the next few months to evaluate steps taken so far to mitigate the effect of PFAS on the environment, and identify further health and safety concerns.
The judicial system is starting to feel the pressure as more and more lawsuits are filed relating to PFAS. Just this week, a Michigan-based company settled a suit with the state of Michigan and two townships for $69.5 million. The company, a shoe manufacturer, and the parties that sued alleged that the company released PFAS into the environment through its disposal of waste from its shoe waterproofing process. The shoe company separately filed claims against 3M, the company whose products it used for waterproofing, claiming that they were misled on the effects of the products it purchased.
Meanwhile, Congress and the White House are continuing to debate the appropriate way to address PFAS through legislation. A recent bill, H.R. 535, also known as the PFAS Action Act, has stalled in the Senate after passing in the House, largely due to President Donald J. Trump’s threat to veto if it reaches his desk. The White House expressed concern over a measure included that requires a mandatory drinking water standard for PFAS.
A new bill was recently introduced by a coalition of Senators led by Bernie Sanders (D-VT). Called the Preventing Future American Sickness (PFAS) Act, it forgoes the drinking water standard included in the previous bill, while still requiring PFAS to be listed as a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The bill also gives the EPA authority to dedicate funds for cleanup efforts, allowing the agency to partner with private entities trying to remove PFAS from drinking water. The White House has yet to comment on this bill.
This flurry of action shows that across all branches of government, PFAS is being prioritized and regulating bodies and regulated entities are working to address public concern about PFAS in a measured but expeditious way. Regulatory updates will be constant, and we will continue to gather information and synthesize it in the coming weeks and months.
Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact any of our PFAS – Toxic Torts Team: Jessica Deyoe, Suzanne Englot, Alexandra Fraher,or John Gardella.