Lawmakers Introduce Bill Calling for National Phaseout of All Nonessential PFAS on U.S. Market

Democratic lawmakers in the U.S. House and Senate have introduced new legislation that aims to remove any unnecessary per- and polyfluoroalkyl substances (PFAS) from circulation in the U.S., in order to lessen the population’s exposure to the toxic “forever” chemicals, which are known to build up in the human body and environment, causing a number of severe health side effects.

Senate Majority Whip Dick Durbin, of Illinois, and House Representative Betty McCollum, of Minnesota, filed versions of the “Forever Chemical Regulation and Accountability Act (FCRAA)” in both the House and Senate on April 18, calling for federal scientists to evaluate the use of PFAS in the U.S. to determine which ones are essential, and which are not.

Those that are not essential would be eliminated in four to 10 years, if the bill is approved into law, which could reduce the rates at which local water supplies nationwide are becoming contaminated with PFAS, which have already been confirmed to be at dangerous levels in many communities, particularly around airports, military bases and firefighter training locations.

PFAS Exposure Concerns

PFAS include a group of over 9,000 man-made substances, which are widely used to resist grease, oil and water. However, they are known to persist for decades, and researchers have identified a myriad of adverse health effects linked to the chemicals, including testicular cancer, kidney cancer, ulcerative colitis and other side effects.

Most of the PFAS health concerns have stemmed from water contamination problems, caused by the large volumes of the chemicals in aqueous film-forming foam (AFFF), which have been used by the military and firefighters for decades to fight fuel-based fires. During training and response exercises, these PFAS chemicals have been dumped into the environment and local water supplies, particularly around military bases, airports and firefighter training locations, causing many communities to have dangerous levels of the chemicals in their drinking water.

3M Company, DuPont, Chemguard, Inc., Tyco Fire Products and other manufacturers of chemicals and fire safety products now face thousands of PFAS water contamination lawsuits brought by local water providers and individuals diagnosed with various types of cancer. The companies also face hundreds of firefighter cancer lawsuits over exposure to AFFF, and evidence uncovered during litigation has further heightened concerns about the long-term risks associated with use of the chemicals.

In a press release issued on April 18, Durbin and McCollum indicate that the legislation would call for the National Academies of Sciences to conduct a review of the health risks of PFAS and then designate which of the chemicals are being used for “essential” purposes, such as those used in batteries and medical devices.

Under the bill, certain classes of non-essential PFAS would be eliminated in four years, and all non-essential uses would be prohibited in 10 years after passage.

“Protecting our environment and Americans from toxic hazards like PFAS is a matter of public health. PFAS surround us. They are in the pots and pans we cook with, in our drinking water supply, in the air we breathe. We must act to ensure that harm brought on by these ‘forever chemicals’ is mitigated,” Durbin said in the press release. “With the Forever Chemical Regulation and Accountability Act, we can work toward phasing out the unnecessary uses of PFAS, protecting consumers and our environment from the hazards of these chemicals.”

The legislation would require all PFAS manufacturers and users to report information about the PFAS they use to the U.S. Environmental Protection Agency (EPA), and submit a phase-out schedule for their non-essential PFAS products. It would also establish regional “PFAS rapid response hubs”, and direct federal agencies to use as many resources as possible to achieve the phase-out goals.

It also calls for updates to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) which would remove statute of limitations and statutes of repose for recently-designated hazardous substances, allowing plaintiffs to file chemical exposure lawsuits based off of the date when the substance was designated hazardous, or when the plaintiff reasonably knew or should have known their injury was caused by exposure to the substance, including PFAS.

U.S. Takes Other Actions to Address PFAS Contamination

The bill came just days after the EPA announced it was setting the first ever national drinking water PFAS standards, which set enforceable limits for five different types of PFAS: perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), perfluorononanoic acid (PFNA), perfluorohexanesulfonic acid (PFHxS), and C3 Dimer Acid (HFPO-DA); also known as GenX, as well as any combination of two or more of these chemicals. The new rule sets a Maximum Containment Level for PFOA and PFOS at 4 parts per trillion, and 10 parts per trillion for PFNA, PFHxS and GenX chemicals.

The EPA estimates that the new limits will need to be addressed by between 6% and 10% of the U.S.’s 66,000 public drinking water systems. All such systems will have three years to complete initial monitoring and must inform the public of the levels of PFAS detected. When PFAS are detected above the maximum containment levels, the system will have five years to reduce those levels to meet EPA standards.

In addition, earlier this year the U.S. Food and Drug Administration announced a ban on PFAS chemicals in U.S. food packaging. The agency indicates that, as of this point, PFAS food packaging is no longer being sold on the U.S. market.

April 2024 PFAS Lawsuit Update

Given common questions of fact and law presented in thousands of lawsuits against AFFF and PFAS manufacturers over the cancer risks linked to use of the chemicals in firefighting foam, coordinated pretrial proceedings have been established in the federal court system before U.S. District Judge Richard M. Gergel in the District of South Carolina, where the claims are currently centralized for discovery and a series of early bellwether trials.

Although the manufacturers have reached proposed settlement over damages sustained by local water suppliers, who have been left with the costs associated with cleaning up the toxic chemicals, there have been no settlements in PFAS injury lawsuits brought by individuals exposed to the chemicals through drinking water, or firefighters directly exposed through AFFF foam.

Last year, Judge Gergel directed the lawyers involved in the litigation to select a group of 28 representative personal injury claims for an PFAS injury bellwether pool, involving plaintiffs who say they were exposed to chemicals that contaminated drinking water.

However, the first cases are unlikely to go before a jury for several years. In addition, the outcome of these claims will not have any binding impact on the other individual lawsuits, although they will be closely watched and may influence how much manufacturers may pay to settle lawsuits brought by other plaintiffs.