PFAS Accountability Act of 2021

II 117TH CONGRESS 1ST SESSION S. 1334 To amend the Toxic Substances Control Act to codify a Federal cause of action and a type of remedy available for individuals significantly exposed to per- and polyfluoroalkyl substances, to encourage research and ac- countability for irresponsible discharge of those substances, and for other purposes. IN THE SENATE OF THE UNITED STATES APRIL 22, 2021 Mrs. GILLIBRAND introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To amend the Toxic Substances Control Act to codify a Federal cause of action and a type of remedy available for individuals significantly exposed to per- and polyfluoroalkyl substances, to encourage research and ac- countability for irresponsible discharge of those sub- stances, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘PFAS Accountability 4 Act of 2021’’. 5 VerDate Sep 11 2014 00:44 May 21, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1334.IS S1334 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 1334 IS SEC. 2. FINDINGS. 1 Congress finds that— 2 (1) the Centers for Disease Control and Preven- 3 tion has detected numerous perfluoroalkyl and 4 polyfluoroalkyl substances (referred to in this Act as 5 ‘‘PFAS’’) in the blood serum of individuals in the 6 United States, all of which come from manufac- 7 turing and use of PFAS by humans, as there is no 8 natural source of PFAS in human blood; 9 (2) peer-reviewed studies by other organizations 10 have detected PFAS in the drinking water of at 11 least 200,000,000 individuals in the United States; 12 (3) PFAS are introduced into the market every 13 year, and little research is conducted to ensure the 14 safety of PFAS for individuals; 15 (4) as of the day before the date of enactment 16 of this Act, a Federal statutory cause of action does 17 not exist for individuals harmed by the long-term ef- 18 fects of PFAS exposure; and 19 (5) PFAS exposure, even at low levels, has been 20 linked to chronic diseases, including cancer, repro- 21 ductive and developmental harms, and harms to the 22 immune system. 23 SEC. 3. PURPOSES. 24 The purposes of this Act are— 25 VerDate Sep 11 2014 00:44 May 21, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1334.IS S1334 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 1334 IS (1) to encourage PFAS research and provide 1 accountability for irresponsible PFAS manufacturing 2 and irresponsible use of PFAS in manufacturing by 3 codifying— 4 (A) a Federal cause of action for individ- 5 uals significantly exposed to PFAS; and 6 (B) a medical monitoring remedy for those 7 individuals; 8 (2) to help address harm to individuals signifi- 9 cantly exposed to PFAS by— 10 (A) codifying that harm as an injury at 11 law and equity; and 12 (B) shifting the costs of medical moni- 13 toring from those individuals to the parties re- 14 sponsible for the exposure; and 15 (3) to provide incentives for industry to fund 16 PFAS safety research. 17 SEC. 4. CAUSE OF ACTION AND REMEDIES. 18 (a) IN GENERAL.—The Toxic Substances Control Act 19 is amended by inserting after section 24 (15 U.S.C. 2623) 20 the following: 21 VerDate Sep 11 2014 00:44 May 21, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1334.IS S1334 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 1334 IS ‘‘SEC. 25. INDIVIDUALS EXPOSED TO PERFLUOROALKYL 1 AND POLYFLUOROALKYL SUBSTANCES. 2 ‘‘(a) DEFINITION OF PFAS.—In this section, the 3 term ‘PFAS’ means a perfluoroalkyl or polyfluoroalkyl 4 substance with at least 1 fully fluorinated carbon atom. 5 ‘‘(b) CAUSE OF ACTION.—An individual who is sig- 6 nificantly exposed to PFAS or has reasonable grounds to 7 suspect that the individual was significantly exposed to 8 PFAS may bring a claim, individually or on behalf of a 9 class of similarly situated individuals, in any district court 10 of the United States for appropriate legal and equitable 11 relief against any person that— 12 ‘‘(1) engaged in any portion of a manufacturing 13 process that created the PFAS to which the indi- 14 vidual was significantly exposed, including any 15 telomer, fluorosurfactant, or toll manufacturing 16 process leading to the creation of the PFAS to 17 which the individual was significantly exposed; and 18 ‘‘(2) foresaw or reasonably should have foreseen 19 that the creation or use of PFAS would result in 20 human exposure to PFAS. 21 ‘‘(c) MEDICAL MONITORING.— 22 ‘‘(1) IN GENERAL.—A court may award medical 23 monitoring to an individual or class of individuals 24 bringing a claim under subsection (b) if— 25 VerDate Sep 11 2014 00:44 May 21, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1334.IS S1334 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 1334 IS ‘‘(A) the individual or class has been sig- 1 nificantly exposed to PFAS; 2 ‘‘(B) as a result of that exposure, the indi- 3 vidual or class has suffered an increased risk of 4 developing a disease associated with exposure to 5 PFAS; 6 ‘‘(C) as a result of that increased risk, 7 there is a reasonable basis for the individual or 8 class to undergo periodic diagnostic medical ex- 9 aminations of a nature or frequency that is dif- 10 ferent from or additional to what would be pre- 11 scribed in the absence of the exposure; and 12 ‘‘(D) those medical examinations are effec- 13 tive in detecting a disease associated with expo- 14 sure to PFAS. 15 ‘‘(2) PRESUMPTION OF SIGNIFICANT EXPO- 16 SURE.— 17 ‘‘(A) INDIVIDUALS.—An individual plain- 18 tiff shall be presumed to have been significantly 19 exposed to PFAS under paragraph (1)(A) if the 20 individual— 21 ‘‘(i) demonstrates that— 22 ‘‘(I) the defendant engaged in 23 any portion of a manufacturing proc- 24 ess that created the PFAS to which 25 VerDate Sep 11 2014 00:44 May 21, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1334.IS S1334 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 1334 IS the individual was significantly ex- 1 posed, including any telomer, fluoro- 2 surfactant, or toll manufacturing pro- 3 cess leading to the creation of the 4 PFAS to which the individual was sig- 5 nificantly exposed; and 6 ‘‘(II) the PFAS described in sub- 7 clause (I) were released into 1 or 8 more areas where the individual would 9 have been exposed for a cumulative 10 period of not less than 1 year; or 11 ‘‘(ii) offers testing results that dem- 12 onstrate that PFAS or metabolites of 13 PFAS have been or are currently detected 14 in the body or blood serum of the indi- 15 vidual. 16 ‘‘(B) CLASS ACTIONS.—In a class action, a 17 presumption of significant exposure to PFAS 18 under paragraph (1)(A) shall be established for 19 the class by— 20 ‘‘(i) demonstrating that— 21 ‘‘(I) the defendant engaged in 22 any portion of a manufacturing proc- 23 ess that created the PFAS to which 24 the class members were significantly 25 VerDate Sep 11 2014 00:44 May 21, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1334.IS S1334 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 1334 IS exposed, including any telomer, fluoro- 1 surfactant, or toll manufacturing pro- 2 cess leading to the creation of the 3 PFAS to which the class members 4 were significantly exposed; and 5 ‘‘(II) the PFAS described in sub- 6 clause (I) were released into 1 or 7 more areas where a representative 8 portion of the class members would 9 have been exposed for a cumulative 10 period of not less than 1 year; or 11 ‘‘(ii) offering testing results that dem- 12 onstrate that PFAS or metabolites of 13 PFAS have been or are currently detected 14 in the bodies of a representative portion of 15 class members that share sufficient com- 16 mon exposure characteristics with the 17 class. 18 ‘‘(3) REBUTTING THE PRESUMPTION.— 19 ‘‘(A) IN GENERAL.—A defendant may 20 rebut a presumption of significant exposure 21 with respect to an individual plaintiff or class 22 member for which testing results are not of- 23 fered under subparagraph (A)(ii) or (B)(ii) of 24 VerDate Sep 11 2014 00:44 May 21, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1334.IS S1334 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 1334 IS paragraph (2) by offering results for that indi- 1 vidual or class member of testing that— 2 ‘‘(i) uses a generally accepted method 3 for detecting the particular PFAS or me- 4 tabolites of PFAS at issue; 5 ‘‘(ii) is performed by an independent 6 provider agreed on by both parties; and 7 ‘‘(iii) confirms that the relevant PFAS 8 or metabolites of PFAS likely were not 9 present in the body of the individual or 10 class member at the relevant time in a suf- 11 ficient quantity to qualify as significant ex- 12 posure under paragraph (1)(A). 13 ‘‘(B) COSTS.—A defendant shall be re- 14 sponsible for the costs of testing under subpara- 15 graph (A). 16 ‘‘(C) INDEPENDENT PROVIDER.—If both 17 parties cannot agree on an independent pro- 18 vider under subparagraph (A)(ii), the court 19 shall appoint an independent provider. 20 ‘‘(4) INCREASED RISK OF DEVELOPING DIS- 21 EASE.— 22 ‘‘(A) IN GENERAL.—If there is insufficient 23 toxicological data to reasonably determine 24 whether an individual or class has suffered an 25 VerDate Sep 11 2014 00:44 May 21, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1334.IS S1334 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 1334 IS increased risk of developing a disease associated 1 with exposure to any individual PFAS or group 2 of PFAS under paragraph (1)(B), a court may 3 lower the standard for scientific proof with re- 4 gard to the increased risk of developing that 5 disease until independent and reliable toxi- 6 cological data is available with respect to that 7 individual PFAS or group of PFAS. 8 ‘‘(B) ORDERING STUDIES.—To make avail- 9 able independent and reliable toxicological data 10 described in subparagraph (A) with respect to 11 an individual PFAS or group of PFAS, a court 12 may order new or additional epidemiological, 13 toxicological, or other studies or investigations 14 of that individual PFAS or group of PFAS as 15 part of a medical monitoring remedy awarded 16 under paragraph (1). 17 ‘‘(d) SENSE OF CONGRESS.—It is the sense of Con- 18 gress that courts should encourage more reliable and inde- 19 pendent research into the latent health effects of PFAS. 20 ‘‘(e) EFFECT ON STATE LAW CLAIMS AND REM- 21 EDIES.—Nothing in this section— 22 ‘‘(1) preempts, alters, bars, or precludes any 23 State law claims or remedies, including any State 24 VerDate Sep 11 2014 00:44 May 21, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1334.IS S1334 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 1334 IS law claims or remedies for an injury addressed by 1 this section; or 2 ‘‘(2) provides an exclusive claim or remedy.’’. 3 (b) CLERICAL AMENDMENT.—The table of contents 4 for the Toxic Substances Control Act (Public Law 94– 5 469; 90 Stat. 2003) is amended by inserting after the item 6 relating to section 24 the following: 7 ‘‘Sec. 25. Individuals exposed to perfluoroalkyl and polyfluoroalkyl sub- stances.’’. Æ VerDate Sep 11 2014 00:44 May 21, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\S1334.IS S1334 pbinns on DSKJLVW7X2PROD with BILLS