September 25, 2021

Volume XI, Number 268

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June 2021 PFAS Legislative Developments

Military Reporting and Remediation

  • Federal Level

  • Key point addressed: Reporting and testing of PFAS on military installations. Medical testing on veterans related to PFAS.

Firefighting Foam

  • States Involved: WI

  • Key point addressed: Provide grants for PFAS testing related to firefighting foam.

Food Packaging

  • State Involved: MI

  • Key point addressed: The ban and restriction of PFAS use in food packaging.

Federal Legislature Bill: H.R. 3684

Bill: H.R. 3684

  • Bill: Clean Water for Military Families Act.

  • Sponsors: Sen. Alex Padilla (CA)

  • Introduced: 6/8/2021

  • Status: (6/8/21) Read twice and referred to the Committee on Armed Services

  • Summary: The Secretary of defense shall conduct investigation into releases of PFAS, including testing for the presence of PFAS in groundwater, surface and drinking water, soil, and soil vapor, at or surrounding installations of the Department of Defense located in the United States, formerly used as defense sites, and State-owned facilities of the National Guard. Response Actions will be required with respect to PFAS contamination if the detection of PFAS exceed the standards outlined in a states standard or the Secretary finds remediation of PFAS to be appropriate to protect human health or the environment. 

  • Standards for Response Actions with respect to PFAS contamination shall be described in (1) clause (ii) of section 121(d)(2)(A) of the Comprehensive Environmental Responses, Compensation, and Liability Act; (2) A Federal standard as described in clause (i) of such section); (3) A health advisory under section 1412 (b)(1)(F) of the Safe Drinking Water Act.

Federal Legislature Bill: S. 1973

Bill: S. 1121

  • Bill: The Filthy Fifty Acts

  • Sponsors: Sen. Kirsten Gillibrand (NY) – Democrat

  • Introduced: 6/8/2021

  • Status: (6/8/21) Read Twice and Referred to the Committee on Armed Services

  • Summary: This is a bill to require the Secretary of Defense to conduct testing, removal, and remediation of PFAs and PFOA at all military installations, formerly used defense sites, and State-owned facilities of the National Guard in the United States.
    (a) Testing.— Not later than two years after the date of the enactment of this Act, the Secretary of Defense shall complete testing for PFAS at all military installations, formerly used defense sites, and State-owned facilities of the National Guard in the United States.
    (b) Removal.— Not later than 60 days following the detection of PFAS at a military installation, formerly used defense site, or State-owned facility of the National Guard in the United States, the Secretary shall take removal actions to ensure that all individuals served by a drinking water source contaminated by PFAS from the installation, site, or facility have access to drinking water that meets the applicable standards (outlined in H.R. 3684) regardless of whether the Secretary is the drinking water purveyor.
    (c) Remediation.— Not later than ten years after the date of the enactment of this Act, the Secretary shall complete all physical construction required for the remediation of PFAS at all military installations, formerly used defense sites, and State-owned facilities of the National Guard in the United States.

Federal Legislature Bill: H.R. 3967

Bill: H.R. 3967

  • Bill: Honoring our PACT Act of 2021

  • Sponsors: Rep. Mark Takano (CA) – Democrat

  • Introduced: 6/17/2021

  • Status: (6/24/21) Forwarded to the Subcommittee to Fill Committee; Committee consideration and Mark-up Session held; Order to be reported passed – 14 Yeas and 11 Nays.

  • Summary: This bill was generally established to improve health care and benefits for veterans exposed to toxic substances, and for other purposes. 

  • Section 701 addresses the registry of individuals exposed to PFAS substance on military installations. No later than one year after the date of the enactment of this act, the Secretary of Veterans Affairs shall (A) establish and maintain a registry for eligible individuals who may have been exposed to PFAS on military installations (B) they shall include any information in such registry that the Secretary determined necessary to monitor the health effects of the exposure of member of the Armed Forced to PFAS (C) develop a public information campaign to inform eligible individuals about the registry (D) and periodically notify eligible individuals of significant developments in the study and treatment of conditions associated with PFAS exposure.

State

Bill: HB5250 (MI)

  • Bill Name: Food: other; use of PFAS, bisphenols, and phthalates in food packaging; prohibit.

  • Sponsors: Yousef Rabhi

  • Introduced: 7/1/2021

  • Status: (7/1/2021) Read for the first time and referred to Committee on Agriculture

  • Summary: Beginning January 1, 2023, a person shall not knowingly manufacture, sell, offer for sale, distribute for sale, or distribute for use in this state food packaging to which PFAS, bisphenols, or phthalates have been intentionally added in any amount greater than an incidental presence.

Bill: AB392 (WI)

  • Bill Name: An Act to create 292.66 of the statutes; Relating to: creating a PFAS municipal grant program (FE)

  • Sponsors: Behnke

  • Introduced: 6/8/2021

  • Status: (6/22/2021) Read for a third time and passed (60-38). Ordered immediately messaged and received from Assemble (Chamber – Senate).

  • Summary: This bill creates a municipal grant program, administered by the Department of Natural Resources, to address perfluoroalkyl and polyfluoroalkyl substances (PFAS). Under the program, DNR must provide grants to cities, towns, villages, counties, utility districts, lake protection districts, sewerage districts, and municipal airports. DNR may award a grant only if the applicant tested or trained with a PFAS-containing fire-fighting foam in accordance with applicable state and federal law, or if a third party tested or trained with PFAS-containing fire fighting foam within the boundaries of the municipality; the applicant applied biosolids to land under a water pollution permit issued by DNR; or PFAS are impacting the applicant’s drinking water supply or surface water or groundwater within the municipality and the responsible party is unknown or is unwilling or unable to take the necessary response actions.

  • The bill directs the governor to allocate $10,000,000 per fiscal year for the grant program from the moneys accepted from the federal government under the federal American Rescue Plan Act of 2021.Finally, the bill states that it may not be construed as a legislative grant of authority to a municipality to regulate PFAS substances or enter private property without the advance written consent of the property owner.

Bill: HB365 (OH)

  • Bill Name: Require adoption of certain water quality standards.

  • Sponsors: Mary Lightbody

  • Introduced: 7/1/2021

  • Status: (7/1/21) Introduced (No further action at this time)

  • Summary: This is a bill to amend section 6111.041 and to enact section 6109.26 of the Revised Code to require the Director of Environmental Protection to adopt rules establishing maximum allowable contaminant levels in drinking water and water quality standards for certain contaminants. In establishing an maximum contaminant level (MCL) for PFAS, the director shall establish an individual MCL for each of the following:
    (i) Combined total PFAS;
    (ii) Perfluorooctanoic acid;
    (iii) Perfluorooctane sulfonic acid;
    (iv) Any other individual PFAS, as determined necessary by the director.

Updates on Previously Highlighted Bills

Federal

Federal Legislature Bill: H.R. 3291

  • Bill: To amend the Safe Drinking Water Act.

  • Sponsors: Sen. Paul Tonko (NY)

  • Introduced: 5/18/2021

  • Status: UPDATE: (6/29/21) The House of Energy and Commerce Committee approved 32-24, that would invest $105 billion in drinking water infrastructure. The committee adopted a substiptue amended and three other amended by voice vote before advancing the bill. An amendment from Rep. Raul Ruiz (D-Calif.) that would increase state grants to disadvantaged communities, another from Rep. Debbie Dingell (D-Mich.) that would allow water systems to use federal funds for service reconnection projects and Rep. Nanette Barragán’s (D-Calif.) amendment, which would seek to have the federal government look into the financial status of certain water systems, were the three amendments adopted. 

  • This bill is now placed on the Union Calendar (Calendar No. 52).

  • Summary: To provide assistance for State’s territories areas affected by natural disasters and water systems and schools affected by PFAS or lead and to require the Environmental Protection Agency to promulgate national primary drinking water regulations for PFAS microcystin toxin and 14-dioxane and for other purposes.

Federal Legislature Bill: H.R. 1915 (Federal)

  • Bill: Water Quallity Protection and Job Creation Act of 2021

  • Sponsors: Rep. Peter DeFazio (OR) – Democrat

  • Introduced: 3/16/2021

  • Status: (6/22/2021) Reported (amended) by the Committee on Transportation and Infrastructure (117-69) and placed on the Union Calendar, Calendar No. 48.

  • Summary: UPDATE: This bill is proposed to amend the Federal Water Pollution Control Act to reauthorize certain water pollution control programs, and for other purposes.
    (PFAS related Language in bill)

  • SEC. 222. EMERGING CONTAMINANTS.
    “ (a) In General.— The Administrator shall award grants to owners of publicly owned treatment works to be used for the implementation of a pretreatment standard or effluent limitation developed pursuant to this Act for the introduction into a treatment works, or the discharge of, any pollutant that is a perfluoroalkyl or polyfluoroalkyl substance or any pollutant identified by the Administrator as a contaminant of emerging concern.”
    “ (b) Authorization of Appropriations.— There is authorized to be appropriated to carry out this section $200,000,000 for each of fiscal years 2022 through 2026. ”

State

Bill: H5356 (Rhode Island)

  • Bill: An Act Relating to Health and Safety – PFAs in Food Packaging (Prohibits PFA from being used in food packaging)

  • Sponsors: Cortvreind

  • Introduced: 2/5/2021

  • Status: UPDATE: (6/21/2021) Placed on House Calendar on June 17, 2021 – House passed. Now referred to Senate Environment and Agriculture.

  • Summary:
    25.6—PROHIBITION OF PFAS IN FOOD PACKAGING ACT – It is recognized and acknowledged by the general assembly that:
    (1) PFAS are highly persistent chemicals that are transported long distances in the environment.
    (2) United States manufacturers have voluntarily worked to reduce releases of long-chain PFAS due to their toxic effects on human health.
    (3) The PFAS with fewer than eight (8) carbon-fluorine bonds currently being used as alternatives to PFOA and PFOS are also highly persistent and subject to long-range transport. In addition, the alternative PFAS have similar potential for harm as the long-chain PFAS.
    (4) Over two hundred (200) scientists from all over the world have signed a statement calling for governments to limit the use of PFAS while studies determine the safety of these chemicals, given their persistence in the environment, potential for harm, and lack of adequate data proving safety.
    (5) Food packaging contains PFAS in order to resist grease and other fats from sticking to the paper packaging.
    (6) Alternatives are already in use in food packaging.

Bill: HB236 (New Hampshire)

  • Bill Name: Creating a statute of limitations on civil actions relative to damage cause by perfluoroalkyl and polyfluoroalkyl substances.

  • Sponsors: Suzanne Vail

  • Introduced: 1/9/2021 (referred to Judiciary)

  • Status: UPDATE (6/10/2021) House Concurs with Senate Amendment 201-1695s (Rep. Gordon). Currently in the House. Remote hearing held with Senate in May.

  • Summary: This bill creates a statute of limitation on civil actions relative to damage caused by perfluoroalkyl and polyfluoroalkyl substances.485-H:11 Statute of Limitations; Civil Actions; PFAS Exposure. A civil action arising out of any harm or injury caused by a person or entity found legally responsible for or an action for any damages resulting from a PFAS exposure may be brought within the 6 years after the date the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, such harm, injury, or damages and the causal relationship of an act or omission to such harm, injury or damages.

Bill: AB652 (California)

  • Bill: An Act to Add Chapter 12.5 to Part 3 of Division 104 of the Health and Safety Code, relating to product safety.

  • Sponsors: Firedman

  • Introduced: 2/12/2021

  • Status: UPDATE (6/23/21) Referred to Committee on Environmental Quality in early Juen 2021. From committee chair, with author’s amendeds: Amend, and re-refer to committee. Read Second time, amended and re-referred to Committed on Environmental Quality.

  • Summary: This bill would, on and after July 1, 2023, prohibit a person, including a manufacturer, from selling or distributing in commerce in this state any new, not previously owned, juvenile product, as defined, that contains intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS), as defined. The bill would require a manufacturer to use the least toxic alternative when replacing PFAS chemicals in a juvenile product.

Bill: HB271 ( New Hampshire)

  • Bill Name: Relative to standard for Per and Polyfluoroalkyl substances (PFAS) in drinking water and ambient groundwater.

  • Sponsors: Rosemarie Rung

  • Introduced: 1/9/2021

  • Status: UPDATE: (6/24/21) Conference Committee report 2021-2003 is adopted. Amended the language of the bill to be focused on federal PFAS standards rather than state level standards.

  • Summary: AN ACT relative to standards for PFAS in drinking water and ambient groundwater. This bill directs the department of environmental services to set maximum contaminant limits for PFAS.

  • II. A device that emits to the air any [PFCs] PFAS or precursors that have caused or contributed to an exceedance of an ambient groundwater quality standard or surface water quality standard as a result of the deposition of any such [PFCs] PFAS or precursors from the air, shall be subject to the determination and application of best available control technology. Within 6 months of the department determining that the device is subject to such control technology, the owner of the device shall submit to the department an application for a permit. Within 12 months of permit issuance, the applicant shall complete construction and installation of controls consistent with the permit. Operation of the source may continue through the permitting, construction, and installation time period. A source which can demonstrate to the department that its device no longer contributes to an exceedance of an ambient groundwater quality standard or surface water quality standard shall be exempt from this section.
     

  • III. The construction, installation, or modification of any device that has the potential, based on an applicability threshold adopted by the department, to cause or contribute to an exceedance of an ambient groundwater quality standard or surface water quality standard as a result of the deposition of any [PFCs] PFAS or precursors from the air, shall be prohibited without first applying for and obtaining a permit from the department that establishes emission limitations for such device based on best available control technology.

  • IV. Part of the initial application for a permit under this section shall include an analysis of best available control technology for controlling emissions. Any permit issued shall contain inspection, testing, and reporting requirements, as applicable, to ensure the conditions of the permit are met.

©2021 CMBG3 Law, LLC. All rights reserved.National Law Review, Volume XI, Number 215
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About this Author

John Gardella Environmental Law Attorney CMBG3 Law Firm
Shareholder

John Gardella is a Shareholder at CMBG3 Law in Boston, a law firm specializing in the regulatory, litigation, and compliance aspects of numerous environmental and toxic torts issues. He is a member of the firm’s PFAS Team, which counsels clients on PFAS related issues ranging from state violations to remediation litigation. Mr. Gardella has over 15 years of experience litigating environmental and toxic torts matters, including asbestos, PFAS, benzene, lead paint, mold, talc, hazardous waste and pollution matters. He is a successful trial attorney with over 75 verdicts to...

617-279-8225
Amaran Toppa Director of Client Relations & Development CMBG3
Director of Client Relations & Development

Amaran Toppa joined CMBG3 in 2017 after almost three years in the investment management industry. In addition to her time in the financial sector, Amaran has over 15 years of experience working with law firms who have handled Real Estate, Municipal law, Insurance, Toxic Tort, Criminal and Civil matters. As the Director of Client Relations and Development at CMBG3, Amaran’s focus is to provide superior support and service to the firm’s clientele. She also works closely with CMBG3’s Government Affairs team and is a registered lobbyist.

Amaran...

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Tori Paiva Litigation Paralegal CMBG3 Law
Paralegal

Prior to joining the CMBG3, Tori worked as a litigation paralegal at a nationally prominent law firm in Boston that focused in personal injury, general liability, workers compensation and social security disability. During her time there, Tori was able to work closely with attorneys and handled a large number of cases individually.

Tori graduated from the University of Maine in 2016 with a major in political science and a minor in legal studies/sociology. While attending UMaine, Tori was involved in the Pre-Law Society, which exposed her to the legal field by being able to assist...

617-279-8219
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