PFAS Legislation Halted at Federal Level; States Continue to Lead PFAS Legislation

The latest opportunity to pass federal legislation on PFAS failed as lawmakers in the Senate removed Congressional mandates for national primary drinking water regulations for two PFAS-class chemicals from the National Defense Authorization Act. This delays one of the EPA’s objectives laid out in their PFAS Strategic Roadmap and will put the impetus back on regulators until further legislation on PFAS is introduced in Congress. The NDAA had become the primary vehicle for Congressional PFAS legislation, as this bill must be passed annually to fund the military for the following year. The mandate for national primary drinking water regulations would have required the EPA to implement enforceable maximum contaminant levels (MCLs) for public drinking water providers.

Beyond the mandate for national drinking water regulations, the NDAA included several PFAS provisions that successfully passed both the House and Senate. These provisions were largely military-specific, such as:

• Codifying a military task force to improve PFAS testing and remediation
• Implementing a two-year deadline for evaluating PFAS contamination at 50 high priority sites
• Requiring an Air Force report on their acquisition and remediation of PFAS contaminated properties
• Imposing a DOD moratorium on PFAS disposal by incineration
• Publicly releasing reports on PFAS in drinking water and groundwater at and near military bases

While removed from the bill, the EPA still plans to implement MCLs for PFOA and PFOS by Fall 2022 and is also moving forward on evaluating other PFAS. On December 20, 2021, the EPA finalized the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) which begins national monitoring for 29 PFAS chemicals in drinking water. This requires all drinking water systems serving 3,300 people and up to monitor for these PFAS beginning in 2023, which will give the EPA additional data to aid in future rulemaking related to PFAS.

At the state level, a Florida Senate panel proposed the creation of a PFAS task force that would evaluate how to identify and remediate PFAS in the state, and the Illinois EPA proposed groundwater quality standards for five PFAS. Three new PFAS are expected to be introduced on January 5 in New Hampshire which will propose creating MCLs for seven PFAS, prohibiting the sale of products containing PFAS, and requiring testing for PFAS in schools.

Additionally, California’s ban on the manufacture, sale, and use of PFAS-containing Class B firefighting foam begins on January 1, 2022. This ban does not yet affect liquid terminals, who are exempt from the ban until January 1, 2028.