Supreme Court Justice Louis Brandeis once opined that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”[1] Indeed, over the last few years, numerous states like California, Maine, Minnesota, and New York have served as those laboratories when it comes to laws and regulations governing the use of per- and polyflouroalkyl substances (“PFAS”). These states have all passed legislation requiring the reporting, labeling, and for various categories of goods, the outright ban of forever chemicals” (so-called because of their persistence in the environment) when intentionally added to consumer products. Despite these laws being criticized for vagueness and overreach (even by Democratic governors’ standards), as well as serious implementation problems plaguing the roll-out of these regulations, Congressional Democrats have introduced legislation that would phase out all non-essential” uses of PFAS in 10 years while also amending the Comprehensive Environmental Response, Compensation & Liability Act (“CERCLA” or Superfund”) to prevent potentially responsible parties (“PRPs”) from avoiding cleanup liability via declaring bankruptcy.

On April 18, Senate Majority Whip Dick Durbin (D-IL) and Rep. Betty McCollum (D-MN) of the House Appropriations Committee, introduced companion versions of Forever Chemical Regulation and Accountability Act (“FCRAA”) in their respective Congressional chambers. The Senate bill, S.4187, has been referred to the Environment & Public Works Committee while the House companion, H.R.8074, has been referred to five different House committees: (1) Energy and Commerce; (2) Oversight and Accountability; (3) Science, Space, and Technology; (4) Transportation and Infrastructure; and (5) Armed Services.

As written, the bill would task the National Academies of Sciences with reviewing and evaluating the available scientific evidence to determine categories” of essential uses” of PFAS, and provide guidance on designating PFAS uses as either essential” or non-essential.” Then, the bill would set a four year deadline to eliminate non-essential uses of PFAS in certain classes, and a 10-year national deadline to eliminate non-essential PFAS uses in all non-essential classes, while providing exemptions for currently unavoidable and certain critical purposes. The bill provides a petition process to designate a use of PFAS as essential or non-essential.”

The bill also takes a page out of Maine and Minnesota’s PFAS reporting laws. Specifically, FCRAA would require all PFAS manufacturers and users to file reports with the U.S. Environmental Protection Agency (“EPA”) to disclose certain information relating to PFAS, as well as to submit their own phase-out schedule.

Beyond the phase-out and notification requirements, the bill would update CERCLA to toll state statutes of limitations and statutes of repose for newly-designated hazardous substances, like PFAS, until the later of either: the date on which it was designated as a hazardous substance; or when the plaintiff knew or reasonably should have known of their injury related to the substance. According to a section-by-section summary of the bill, FCRAA will also prevent large corporations from exploiting bankruptcy procedures to avoid persistent, bioaccumulative, and toxic chemicals, including PFAS, claims.”

The full-text of the 107-page bill is available here. A section-by-section summary of the bill is available here.

[1] New State Ice Co. v. Lieberman, 285 U.S. 262 (1932).