PFAS Action Act of 2021

IIB 117TH CONGRESS 1ST SESSION H. R. 2467 IN THE SENATE OF THE UNITED STATES JULY 22, 2021 Received; read twice and referred to the Committee on Environment and Public Works AN ACT To require the Administrator of the Environmental Protec- tion Agency to designate per- and polyfluoroalkyl sub- stances as hazardous substances under the Comprehen- sive Environmental Response, Compensation, and Liabil- ity Act of 1980. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 22:44 Jul 22, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2467.RFS H2467 pbinns on DSKJLVW7X2PROD with BILLS 2 HR 2467 RFS SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 1 (a) SHORT TITLE.—This Act may be cited as the 2 ‘‘PFAS Action Act of 2021’’. 3 (b) TABLE OF CONTENTS.—The table of contents for 4 this Act is as follows: 5 Sec. 1. Short title; table of contents. Sec. 2. Designation as hazardous substances. Sec. 3. Testing of perfluoroalkyl and polyfluoroalkyl substances. Sec. 4. Manufacturing and processing notices for perfluoroalkyl and polyfluoroalkyl substances. Sec. 5. National primary drinking water regulations for PFAS. Sec. 6. Enforcement. Sec. 7. Establishment of PFAS infrastructure grant program. Sec. 8. Listing of perfluoroalkyl and polyfluoroalkyl substances as hazardous air pollutants. Sec. 9. Prohibition on unsafe waste incineration of PFAS. Sec. 10. Label for PFAS-free products. Sec. 11. Guidance on minimizing the use of firefighting foam and other related equipment containing any PFAS. Sec. 12. Investigation of prevention of contamination by GenX. Sec. 13. Disclosure of introductions of PFAS. Sec. 14. Household well water testing website. Sec. 15. Risk-communication strategy. Sec. 16. Assistance to Territories for addressing emerging contaminants, with a focus on perfluoroalkyl and polyfluoroalkyl substances. Sec. 17. Clean Water Act effluent limitations guidelines and standards and water quality criteria for PFAS. Sec. 18. School drinking water testing and filtration grant program. Sec. 19. Analytical reference standards for PFAS. SEC. 2. DESIGNATION AS HAZARDOUS SUBSTANCES. 6 (a) DESIGNATION.—Not later than 1 year after the 7 date of enactment of this Act, the Administrator of the 8 Environmental Protection Agency shall designate 9 perfluorooctanoic acid and its salts, and 10 perfluoroactanesulfonic acid and its salts, as hazardous 11 substances under section 102(a) of the Comprehensive En- 12 vironmental Response, Compensation, and Liability Act of 13 1980 (42 U.S.C. 9602(a)). 14 VerDate Sep 11 2014 22:44 Jul 22, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2467.RFS H2467 pbinns on DSKJLVW7X2PROD with BILLS 3 HR 2467 RFS (b) DEADLINE FOR ADDITIONAL DETERMINA- 1 TIONS.—Not later than 5 years after the date of enact- 2 ment of this Act, the Administrator of the Environmental 3 Protection Agency shall determine whether to designate 4 all perfluoroalkyl and polyfluoroalkyl substances, other 5 than those perfluoroalkyl and polyfluoroalkyl substances 6 designated pursuant to subsection (a), as hazardous sub- 7 stances under section 102(a) of the Comprehensive Envi- 8 ronmental Response, Compensation, and Liability Act of 9 1980 (42 U.S.C. 9602(a)) individually or in groups. 10 (c) AIRPORT SPONSORS.— 11 (1) IN GENERAL.—No sponsor, including a 12 sponsor of the civilian portion of a joint-use airport 13 or a shared-use airport (as such terms are defined 14 in section 139.5 of title 14, Code of Federal Regula- 15 tions (or a successor regulation)), shall be liable 16 under the Comprehensive Environmental Response, 17 Compensation, and Liability Act of 1980 (42 U.S.C. 18 9601 et seq.) for the costs of responding to, or dam- 19 ages resulting from, a release to the environment of 20 a perfluoroalkyl or polyfluoroalkyl substance des- 21 ignated as a hazardous substance under section 22 102(a) of such Act that resulted from the use of 23 aqueous film forming foam agent, if such use was— 24 VerDate Sep 11 2014 22:44 Jul 22, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2467.RFS H2467 pbinns on DSKJLVW7X2PROD with BILLS 4 HR 2467 RFS (A) required by the Federal Aviation Ad- 1 ministration for compliance with part 139 of 2 title 14, Code of Federal Regulations; and 3 (B) carried out in accordance with Federal 4 Aviation Administration standards and guid- 5 ance on the use of such substance. 6 (2) SPONSOR DEFINED.—In this subsection, the 7 term ‘‘sponsor’’ has the meaning given such term in 8 section 47102 of title 49, United States Code. 9 (d) PUBLIC AVAILABILITY.—Not later than 60 days 10 after making a determination under subsection (b), the 11 Administrator of the Environmental Protection Agency 12 shall make the results of such determination publicly avail- 13 able on the website of the Environmental Protection Agen- 14 cy. 15 (e) REVIEW.— 16 (1) IN GENERAL.—Not later than 5 years after 17 the date of the enactment of this Act, the Adminis- 18 trator of the Environmental Protection Agency shall 19 submit to the appropriate congressional committees 20 a report containing a review of actions by the Envi- 21 ronmental Protection Agency to clean up contamina- 22 tion of the substances designated pursuant to sub- 23 section (a). 24 VerDate Sep 11 2014 22:44 Jul 22, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2467.RFS H2467 pbinns on DSKJLVW7X2PROD with BILLS 5 HR 2467 RFS (2) MATTERS INCLUDED.— The report under 1 paragraph (1) shall include an assessment of clean- 2 up progress and effectiveness, including the fol- 3 lowing: 4 (A) The number of sites where the Envi- 5 ronmental Protection Agency has acted to re- 6 mediate contamination of the substances des- 7 ignated pursuant to subsection (a). 8 (B) Which types of chemicals relating to 9 such substances were present at each site and 10 the extent to which each site was contaminated. 11 (C) An analysis of discrepancies in cleanup 12 between Federal and non-Federal contamina- 13 tion sites. 14 (D) Any other elements the Administrator 15 may determine necessary. 16 (3) APPROPRIATE CONGRESSIONAL COMMIT- 17 TEES DEFINED.—In this subsection, the term ‘‘ap- 18 propriate congressional committees’’ means the fol- 19 lowing: 20 (A) The Committee on Energy and Com- 21 merce of the House of Representatives. 22 (B) The Committee on the Environment 23 and Public Works of the Senate. 24 VerDate Sep 11 2014 22:44 Jul 22, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2467.RFS H2467 pbinns on DSKJLVW7X2PROD with BILLS 6 HR 2467 RFS SEC. 3. TESTING OF PERFLUOROALKYL AND 1 POLYFLUOROALKYL SUBSTANCES. 2 (a) TESTING REQUIREMENTS.—Section 4(a) of the 3 Toxic Substances Control Act (15 U.S.C. 2603(a)) is 4 amended by adding at the end the following: 5 ‘‘(5) PERFLUOROALKYL AND 6 POLYFLUOROALKYL SUBSTANCES RULE.— 7 ‘‘(A) RULE.—Notwithstanding paragraphs 8 (1) through (3), the Administrator shall, by 9 rule, require that comprehensive toxicity testing 10 be conducted on all chemical substances that 11 are perfluoroalkyl or polyfluoroalkyl substances. 12 ‘‘(B) REQUIREMENTS.—In issuing a rule 13 under subparagraph (A), the Administrator— 14 ‘‘(i) may establish categories of 15 perfluoroalkyl and polyfluoroalkyl sub- 16 stances based on hazard characteristics or 17 chemical properties; 18 ‘‘(ii) shall require the development of 19 information relating to perfluoroalkyl and 20 polyfluoroalkyl substances that the Admin- 21 istrator determines is likely to be useful in 22 evaluating the hazard and risk posed by 23 such substances in land, air, and water (in- 24 cluding drinking water and water used for 25 VerDate Sep 11 2014 22:44 Jul 22, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2467.RFS H2467 pbinns on DSKJLVW7X2PROD with BILLS 7 HR 2467 RFS agricultural purposes), as well as in prod- 1 ucts; and 2 ‘‘(iii) may allow for varied or tiered 3 testing requirements based on hazard char- 4 acteristics or chemical properties of 5 perfluoroalkyl and polyfluoroalkyl sub- 6 stances or categories of perfluoroalkyl and 7 polyfluoroalkyl substances. 8 ‘‘(C) DEADLINES.—The Administrator 9 shall issue— 10 ‘‘(i) a proposed rule under subpara- 11 graph (A) not later than 6 months after 12 the date of enactment of this paragraph; 13 and 14 ‘‘(ii) a final rule under subparagraph 15 (A) not later than 2 years after the date 16 of enactment of this paragraph.’’. 17 (b) PERSONS SUBJECT TO RULE.—Section 4(b)(3) of 18 the Toxic Substances Control Act (15 U.S.C. 2603(b)(3)) 19 is amended— 20 (1) in subparagraph (A), by striking ‘‘subpara- 21 graph (B) or (C)’’ and inserting ‘‘subparagraph (B), 22 (C), or (D)’’; and 23 (2) by adding at the end the following: 24 VerDate Sep 11 2014 22:44 Jul 22, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2467.RFS H2467 pbinns on DSKJLVW7X2PROD with BILLS 8 HR 2467 RFS ‘‘(D) A rule under subsection (a)(5) shall require the 1 development of information by any person who manufac- 2 tures or processes, or intends to manufacture or process, 3 a chemical substance that is a perfluoroalkyl or 4 polyfluoroalkyl substance.’’. 5 (c) PERFLUOROALKYL AND POLYFLUOROALKYL SUB- 6 STANCES.—Section 4 of the Toxic Substances Control Act 7 (15 U.S.C. 2603) is amended by adding at the end the 8 following: 9 ‘‘(i) PERFLUOROALKYL AND POLYFLUOROALKYL 10 SUBSTANCES.— 11 ‘‘(1) TESTING REQUIREMENT RULE.— 12 ‘‘(A) PROTOCOLS AND METHODOLOGIES.— 13 In determining the protocols and methodologies 14 to be included pursuant to subsection (b)(1) in 15 a rule under subsection (a)(5), the Adminis- 16 trator shall allow for protocols and methodolo- 17 gies that test chemical substances that are 18 perfluoroalkyl and polyfluoroalkyl substances as 19 a class. 20 ‘‘(B) PERIOD.—In determining the period 21 to be included pursuant to subsection (b)(1) in 22 a rule under subsection (a)(5), the Adminis- 23 trator shall ensure that the period is as short 24 VerDate Sep 11 2014 22:44 Jul 22, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2467.RFS H2467 pbinns on DSKJLVW7X2PROD with BILLS 9 HR 2467 RFS as possible while allowing for completion of the 1 required testing. 2 ‘‘(2) EXEMPTIONS.—In carrying out subsection 3 (c) with respect to a chemical substance that is a 4 perfluoroalkyl or polyfluoroalkyl substance, the Ad- 5 ministrator— 6 ‘‘(A) may only determine under subsection 7 (c)(2) that information would be duplicative if 8 the chemical substance with respect to which 9 the application for exemption is submitted is in 10 the same category, as established under sub- 11 section (a)(5)(B)(i), as a chemical substance for 12 which information has been submitted to the 13 Administrator in accordance with a rule, order, 14 or consent agreement under subsection (a) or 15 for which information is being developed pursu- 16 ant to such a rule, order, or consent agreement; 17 and 18 ‘‘(B) shall publish a list of all such chem- 19 ical substances for which an exemption under 20 subsection (c) is granted.’’. 21 VerDate Sep 11 2014 22:44 Jul 22, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2467.RFS H2467 pbinns on DSKJLVW7X2PROD with BILLS 10 HR 2467 RFS SEC. 4. MANUFACTURING AND PROCESSING NOTICES FOR 1 PERFLUOROALKYL AND POLYFLUOROALKYL 2 SUBSTANCES. 3 Section 5 of the Toxic Substances Control Act (15 4 U.S.C. 2604) is amended— 5 (1) in subsection (h), by adding at the end the 6 following: 7 ‘‘(7) PFAS.— 8 ‘‘(A) IN GENERAL.—Except as provided in 9 subparagraph (B), this subsection does not 10 apply to any chemical substance that is a 11 perfluoroalkyl or polyfluoroalkyl substance. 12 ‘‘(B) DRUGS AND DEVICES.—Paragraph 13 (3) applies to a chemical substance that is a 14 perfluoroalkyl or polyfluoroalkyl substance 15 which is manufactured or processed, or pro- 16 posed to be manufactured or processed, solely 17 for purposes of— 18 ‘‘(i) scientific experimentation or anal- 19 ysis with respect to a drug or device (as 20 such terms are defined in section 201 of 21 the Federal Food, Drug, and Cosmetic 22 Act) or personal protective equipment (as 23 such term is defined in section 20005 of 24 the CARES Act); or 25 VerDate Sep 11 2014 22:44 Jul 22, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2467.RFS H2467 pbinns on DSKJLVW7X2PROD with BILLS 11 HR 2467 RFS ‘‘(ii) chemical research on, or analysis 1 of, such a chemical substance for the devel- 2 opment of a drug or device (as such terms 3 are defined in section 201 of the Federal 4 Food, Drug, and Cosmetic Act) or personal 5 protective equipment (as such term is de- 6 fined in section 20005 of the CARES 7 Act).’’; and 8 (2) by adding at the end the following: 9 ‘‘(j) PERFLUOROALKYL AND POLYFLUOROALKYL 10 SUBSTANCES.— 11 ‘‘(1) DETERMINATION.—For a period of 5 12 years beginning on the date of enactment of this 13 subsection, any chemical substance that is a 14 perfluoroalkyl or polyfluoroalkyl substance for which 15 a notice is submitted under subsection (a) shall be 16 deemed to have been determined by the Adminis- 17 trator to present an unreasonable risk of injury to 18 health or the environment under paragraph (3)(A) 19 of such subsection. 20 ‘‘(2) ORDER.—Notwithstanding subsection 21 (a)(3)(A), for a chemical substance described in 22 paragraph (1) of this subsection, the Administrator 23 shall issue an order under subsection (f)(3) to pro- 24 VerDate Sep 11 2014 22:44 Jul 22, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2467.RFS H2467 pbinns on DSKJLVW7X2PROD with BILLS 12 HR 2467 RFS hibit the manufacture, processing, and distribution 1 in commerce of such chemical substance.’’. 2 SEC. 5. NATIONAL PRIMARY DRINKING WATER REGULA- 3 TIONS FOR PFAS. 4 Section 1412(b) of the Safe Drinking Water Act (42 5 U.S.C. 300g–1(b)) is amended by adding at the end the 6 following: 7 ‘‘(16) PERFLUOROALKYL AND 8 POLYFLUOROALKYL SUBSTANCES.— 9 ‘‘(A) IN GENERAL.—Not later than 2 years 10 after the date of enactment of this paragraph, 11 the Administrator shall, after notice and oppor- 12 tunity for public comment, promulgate a na- 13 tional primary drinking water regulation for 14 perfluoroalkyl and polyfluoroalkyl substances, 15 which shall, at a minimum, include standards 16 for— 17 ‘‘(i) perfluorooctanoic acid (commonly 18 referred to as ‘PFOA’); and 19 ‘‘(ii) perfluorooctane sulfonic acid 20 (commonly referred to as ‘PFOS’). 21 ‘‘(B) ALTERNATIVE PROCEDURES.— 22 ‘‘(i) IN GENERAL.—Not later than 1 23 year after the validation by the Adminis- 24 trator of an equally effective quality con- 25 VerDate Sep 11 2014 22:44 Jul 22, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt [Text truncated for display. 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