PFAS Action Act of 2019

IIB 116TH CONGRESS 2D SESSION H. R. 535 IN THE SENATE OF THE UNITED STATES JANUARY 13, 2020 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 22:09 Jan 13, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H535.RFS H535 pamtmann on DSKBC07HB2PROD with BILLS 2 HR 535 RFS SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 1 (a) SHORT TITLE.—This Act may be cited as the 2 ‘‘PFAS Action Act of 2019’’. 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 standards, pretreatment standards, and water quality criteria 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 22:09 Jan 13, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H535.RFS H535 pamtmann on DSKBC07HB2PROD with BILLS 3 HR 535 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 22:09 Jan 13, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H535.RFS H535 pamtmann on DSKBC07HB2PROD with BILLS 4 HR 535 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 22:09 Jan 13, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H535.RFS H535 pamtmann on DSKBC07HB2PROD with BILLS 5 HR 535 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 22:09 Jan 13, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H535.RFS H535 pamtmann on DSKBC07HB2PROD with BILLS 6 HR 535 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), as well as in prod- 25 ucts; and 26 VerDate Sep 11 2014 22:09 Jan 13, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H535.RFS H535 pamtmann on DSKBC07HB2PROD with BILLS 7 HR 535 RFS ‘‘(iii) may allow for varied or tiered 1 testing requirements based on hazard char- 2 acteristics or chemical properties of 3 perfluoroalkyl and polyfluoroalkyl sub- 4 stances or categories of perfluoroalkyl and 5 polyfluoroalkyl substances. 6 ‘‘(C) DEADLINES.—The Administrator 7 shall issue— 8 ‘‘(i) a proposed rule under subpara- 9 graph (A) not later than 6 months after 10 the date of enactment of this paragraph; 11 and 12 ‘‘(ii) a final rule under subparagraph 13 (A) not later than 2 years after the date 14 of enactment of this paragraph.’’. 15 (b) PERSONS SUBJECT TO RULE.—Section 4(b)(3) of 16 the Toxic Substances Control Act (15 U.S.C. 2603(b)(3)) 17 is amended— 18 (1) in subparagraph (A), by striking ‘‘subpara- 19 graph (B) or (C)’’ and inserting ‘‘subparagraph (B), 20 (C), or (D)’’; and 21 (2) by adding at the end the following: 22 ‘‘(D) A rule under subsection (a)(5) shall require the 23 development of information by any person who manufac- 24 tures or processes, or intends to manufacture or process, 25 VerDate Sep 11 2014 22:09 Jan 13, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H535.RFS H535 pamtmann on DSKBC07HB2PROD with BILLS 8 HR 535 RFS a chemical substance that is a perfluoroalkyl or 1 polyfluoroalkyl substance.’’. 2 (c) PERFLUOROALKYL AND POLYFLUOROALKYL SUB- 3 STANCES.—Section 4 of the Toxic Substances Control Act 4 (15 U.S.C. 2603) is amended by adding at the end the 5 following: 6 ‘‘(i) PERFLUOROALKYL AND POLYFLUOROALKYL 7 SUBSTANCES.— 8 ‘‘(1) TESTING REQUIREMENT RULE.— 9 ‘‘(A) PROTOCOLS AND METHODOLOGIES.— 10 In determining the protocols and methodologies 11 to be included pursuant to subsection (b)(1) in 12 a rule under subsection (a)(5), the Adminis- 13 trator shall allow for protocols and methodolo- 14 gies that test chemical substances that are 15 perfluoroalkyl and polyfluoroalkyl substances as 16 a class. 17 ‘‘(B) PERIOD.—In determining the period 18 to be included pursuant to subsection (b)(1) in 19 a rule under subsection (a)(5), the Adminis- 20 trator shall ensure that the period is as short 21 as possible while allowing for completion of the 22 required testing. 23 ‘‘(2) EXEMPTIONS.—In carrying out subsection 24 (c) with respect to a chemical substance that is a 25 VerDate Sep 11 2014 22:09 Jan 13, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H535.RFS H535 pamtmann on DSKBC07HB2PROD with BILLS 9 HR 535 RFS perfluoroalkyl or polyfluoroalkyl substance, the Ad- 1 ministrator— 2 ‘‘(A) may only determine under subsection 3 (c)(2) that information would be duplicative if 4 the chemical substance with respect to which 5 the application for exemption is submitted is in 6 the same category, as established under sub- 7 section (a)(5)(B)(i), as a chemical substance for 8 which information has been submitted to the 9 Administrator in accordance with a rule, order, 10 or consent agreement under subsection (a) or 11 for which information is being developed pursu- 12 ant to such a rule, order, or consent agreement; 13 and 14 ‘‘(B) shall publish a list of all such chem- 15 ical substances for which an exemption under 16 subsection (c) is granted.’’. 17 SEC. 4. MANUFACTURING AND PROCESSING NOTICES FOR 18 PERFLUOROALKYL AND POLYFLUOROALKYL 19 SUBSTANCES. 20 Section 5 of the Toxic Substances Control Act (15 21 U.S.C. 2604) is amended— 22 (1) in subsection (h), by adding at the end the 23 following: 24 VerDate Sep 11 2014 22:09 Jan 13, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H535.RFS H535 pamtmann on DSKBC07HB2PROD with BILLS 10 HR 535 RFS ‘‘(7) This subsection does not apply to any chemical 1 substance that is a perfluoroalkyl or polyfluoroalkyl sub- 2 stance.’’; and 3 (2) by adding at the end the following: 4 ‘‘(j) PERFLUOROALKYL AND POLYFLUOROALKYL 5 SUBSTANCES.— 6 ‘‘(1) DETERMINATION.—For a period of 5 7 years beginning on the date of enactment of this 8 subsection, any chemical substance that is a 9 perfluoroalkyl or polyfluoroalkyl substance for which 10 a notice is submitted under subsection (a) shall be 11 deemed to have been determined by the Adminis- 12 trator to present an unreasonable risk of injury to 13 health or the environment under paragraph (3)(A) 14 of such subsection. 15 ‘‘(2) ORDER.—Notwithstanding subsection 16 (a)(3)(A), for a chemical substance described in 17 paragraph (1) of this subsection, the Administrator 18 shall issue an order under subsection (f)(3) to pro- 19 hibit the manufacture, processing, and distribution 20 in commerce of such chemical substance.’’. 21 VerDate Sep 11 2014 22:09 Jan 13, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H535.RFS H535 pamtmann on DSKBC07HB2PROD with BILLS 11 HR 535 RFS SEC. 5. NATIONAL PRIMARY DRINKING WATER REGULA- 1 TIONS FOR PFAS. 2 Section 1412(b) of the Safe Drinking Water Act (42 3 U.S.C. 300g–1(b)) is amended by adding at the end the 4 following: 5 ‘‘(16) PERFLUOROALKYL AND 6 POLYFLUOROALKYL SUBSTANCES.— 7 ‘‘(A) IN GENERAL.—Not later than 2 years 8 after the date of enactment of this paragraph, 9 the Administrator shall, after notice and oppor- 10 tunity for public comment, promulgate a na- 11 tional primary drinking water regulation for 12 perfluoroalkyl and polyfluoroalkyl substances, 13 which shall, at a minimum, include standards 14 for— 15 ‘‘(i) perfluorooctanoic acid (commonly 16 referred to as ‘PFOA’); and 17 ‘‘(ii) perfluorooctane sulfonic acid 18 (commonly referred to as ‘PFOS’). 19 ‘‘(B) ALTERNATIVE PROCEDURES.— 20 ‘‘(i) IN GENERAL.—Not later than 1 21 year after the validation by the Adminis- 22 trator of an equally effective quality con- 23 trol and testing procedure to ensure com- 24 pliance with the national primary drinking 25 water regulation promulgated under sub- 26 VerDate Sep 11 2014 22:09 Jan 13, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H535.RFS H535 pamtmann on DSKBC07HB2PROD with BILLS 12 HR 535 RFS paragraph (A) to measure the levels de- 1 scribed in clause (ii) or other methods to 2 detect and monitor perfluoroalkyl and 3 polyfluoroalkyl substances in drinking 4 water, the Administrator shall add the pro- 5 cedure or method as an alternative to the 6 quality control and testing procedure de- 7 scribed in such national primary drinking 8 water regulation by publishing the proce- 9 dure or method in the Federal Register in 10 accordance with section 1401(1)(D). 11 ‘‘(ii) LEVELS DESCRIBED.—The levels 12 referred to in clause (i) are— 13 ‘‘(I) the level of a perfluoroalkyl 14 or polyfluoroalkyl substance; 15 ‘‘(II) the total levels of 16 perfluoroalkyl and polyfluoroalkyl sub- 17 stances; and 18 ‘‘(III) the total levels of organic 19 fluorine. 20 ‘‘(C) INCLUSIONS.—The Administrator 21 may include a perfluoroalkyl or polyfluoroalkyl 22 substance or class of perfluoroalkyl or 23 polyfluoroalkyl substances on— 24 VerDate Sep 11 2014 22:09 Jan 13, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BI [Text truncated for display. Full text available on Congress.gov.]