On December 9, 2019, the conference committee for the Fiscal Year 2020 National Defense Authorization Act (NDAA) released its conference report, which contains the negotiated version of the bill that will be voted on by both chambers of Congress.  The bill includes substantive provisions addressing per- and polyfluoroalkyl substances (PFAS).  Over the summer, the conference committee was formed to reconcile competing defense bills addressing PFAS (S. 1790 and H.R. 2500) into a final bill.

Notably, the final bill does not require any PFAS to be listed as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), nor does the bill require EPA to set national drinking water standards for PFAS.  Key PFAS provisions of the conference report are described in detail below.

Summary of Original House and Senate NDAA Bills

The original House and Senate bills would have required further research into the prevalence and impacts of PFAS, and also would have imposed limits on the Department of Defense’s (DOD) use of PFAS-containing products.  For instance, both bills would have restricted DOD’s use of firefighting foam containing PFAS:  the House bill required switching to fluorine-free fire-fighting agents at all military installations by 2025, while the Senate bill required the Secretary of Defense to cease use of firefighting foam containing PFAS in excess of one part per billion (ppb) by 2023. 

The bills differed substantially on the enforceable federal standards they would have created.  Under the House bill, EPA would have been required to designate all per- and polyfluoroalkyl substances as hazardous substances under CERCLA within one year of the NDAA’s enactment.  EPA would have been required to revise the list of toxic pollutants under the Clean Water Act (CWA) to add per- and polyfluoroalkyl substances.  As soon as practicable (but not later than January 1, 2022), EPA would have been required to publish effluent limitation guidelines (ELGs) and pretreatment standards for those PFAS added to the list of toxic pollutants.

By contrast, the Senate bill would not have required CERCLA hazardous substance designation for PFAS.  Under the Senate bill, EPA would have been required within two years to promulgate national primary drinking water regulations for, at minimum, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) under the Safe Drinking Water Act (SDWA).  EPA would have been permitted to promulgate drinking water standards for additional PFAS individually or as a class.  Importantly, however, the Senate bill would have prevented EPA from imposing financial penalties for violations of PFAS national primary drinking water standards until five years after the standards are promulgated.  For PFAS for which no standard had been imposed, EPA could have imposed monitoring requirements on public water systems provided that the Agency validated a PFAS analytical test method.  Additionally, the Senate bill would have required the United States Geological Survey (USGS)to conduct nationwide sampling to determine the concentration of perfluorinated compounds in various waterbodies.

Major PFAS Provisions Not Included in the Final Bill

• Designation of PFAS as CERCLA Hazardous Substances.The final bill does not designate any PFAS as hazardous substances under CERCLA.
  
  
• CWA Designation and Standards.The final bill does not require EPA to list PFAS on the CWA toxic pollutant list, nor does it require the Agency to publish ELGs or pretreatment standards for PFAS.
  
  
• SDWA National Standards.The final bill does not require EPA to set a national drinking water standard for individual PFAS or classes of PFAS.    

The House is likely to revisit and vote on some or all of these issues early in 2020.  Potential House actions could include designating the entire class of PFAS as CERCLA hazardous substances—or at least mandating that PFOA, PFOS, and certain other PFAS be designated as CERCLA hazardous substances and regulated under the SDWA and CWA.  Senate action on any such proposals in 2020 is uncertain.    

Key PFAS Provisions in the Final Bill

• Addition of PFOA and PFOS to the TRI.The final bill requires immediate addition of PFOA, PFOS, and certain other PFAS or classes of PFAS—including hexafluoropropylene oxide dimer acid, a.k.a. “GenX”)—to the Toxics Release Inventory (TRI) under the Emergency Planning and Community Right-to-Know Act (EPCRA).Facilities that manufacture, process, or produce listed PFAS in quantities of more than 100 pounds per year would be required annually to report their releases (including disposals) of PFAS during the previous calendar year. If the bill is enacted in 2019, the addition of these PFAS to the TRI will be effective on January 1, 2020; under EPCRA, that means covered facilities will have to report their PFAS releases from calendar year 2020 by July 1, 2021. EPA recently released an Advanced Notice of Proposed Rulemaking (ANPRM) indicating that the Agency is considering adding at least certain PFAS to the TRI, and soliciting comment regarding which PFAS warrant listing.¹ See Sec. 7321.

• TSCA reporting and notification rules.
  • The final bill instructs EPA to promulgate a rule under the Toxic Substances Control Act (TSCA) by January 1, 2023 that requires manufacturers and importers of any PFAS in any year from 2011 onward to submit a report to EPA containing information about the chemical identities, quantities manufactured or processed, uses, byproducts, human exposures, environmental and health effects, and manner of disposal for all such PFAS.See Sec. 7351.
  • The final bill also requires EPA to, by June 22, 2020, take final action on a 2015 proposed rule that would establish Significant New Use Rules (SNURs) for a subset of long-chain PFAS.SNURs require manufacturers to provide notice to EPA before substances can be used in ways that might present an unreasonable risk.See Sec. 7352.EPA recently sent a supplement to the 2015 proposed rule to the White House Office of Management and Budget (OMB) for interagency review.²
    
    
• Monitoring requirements for PFAS substances.The final bill requires SDWA monitoring by most public water systems for PFAS and classes of PFAS for which EPA has validated a method of measuring levels in drinking water.As noted above, the final bill does not require EPA to set national drinking water standards for any PFAS under the SDWA; however, should EPA do so, the PFAS or class of PFAS subject to a national drinking water standard would be exempt from this monitoring requirement.See Sec. 7311.
  
  
• USGS nationwide PFAS sampling program.The final bill requires the Director of USGS to (1) establish a performance standard for detecting PFAS, and (2) use the standard to carry out a nationwide PFAS sampling program of estuaries, lakes, streams, springs, wells, wetlands, rivers, aquifers, and soil.See Secs. 7331 to 7335.
  
  
• Interim guidance on PFAS disposal and process for prioritizing PFAS.
  • The final bill requires EPA to publish interim guidance on the destruction and disposal of PFAS and PFAS-containing materials.The guidance must be published within one year of the bill’s enactment and revised at least every three years.See Sec. 7361.
  • The final bill also requires EPA to develop a process for prioritizing which PFAS or classes of PFAS should be subject to additional research efforts based on human exposure, potential toxicity, and currently available information.Additionally, EPA must develop tools to characterize and identify PFAS in the environment, evaluate approaches to remediate PFAS in the environment, and develop new tools and materials for communicating to the public about PFAS.See Sec. 7362.
    
    
• Interagency working group and research coordination on emerging contaminants.The final bill requires EPA and the Secretary of Health and Human Services to jointly establish an interagency working group on the public health effects of drinking water contaminants of emerging concern.The bill also requires the Director of the White House Office of Science and Technology Policy to coordinate with the working group’s member agencies to establish a research initiative on emerging contaminants.See Secs. 7341 and 7342.
  
  
• State grants to address PFAS in drinking water.The final bill establishes a drinking water state revolving fund under the SDWA to address emerging contaminants, with a focus on PFAS.The bill authorizes $100 million to be appropriated to the fund in each fiscal year from 2020 to 2024.See Sec. 7312.
  
  
• DOD-specific provisions pertaining to AFFF and impact on communities.
  • With respect to ongoing and future uses of PFAS, the final bill prohibits the use of firefighting foam containing PFAS (i.e., fluorinated aqueous film-forming foam, or AFFF) after October 1, 2024, and immediately prohibits the use of AFFF in training exercises at military installations.The bill also prohibits uncontrolled releases of AFFF at military installations, except for purposes of an emergency response.There is an exception for use of PFAS in firefighting foam aboard military ships.See Secs. 322 to 324.
  • Within 180 days of enactment, the final bill requires the Secretary of Defense to “submit to Congress a remediation plan for cleanup of all water at or adjacent to a military installation that is contaminated with PFOA or PFOS.”See Sec. 345.
  • The final bill contains additional provisions encouraging greater DOD cooperation with states and localities in investigating and cleaning up alleged PFAS-related impacts.

The conference report will need to be adopted by both the House and Senate before the bill is sent to President Trump for his signature or veto.  The House agreed to the conference report today, December 11, while the Senate is expected to vote on the conference report later this week.  The White House has indicated support for the NDAA, meaning that President Trump is likely to sign it into law.³

Ongoing EPA Efforts to Address PFAS

Irrespective of Congressional efforts, EPA continues to pursue various regulatory options related to PFAS.  In February 2019, EPA released an “Action Plan” to address potential risks and contamination from PFAS.  Among other initiatives, EPA indicated that it would designate PFOA and PFOS as hazardous substances under CERCLA.  A proposed rule was tentatively scheduled for November 2019 but has not yet been released.⁴ Meanwhile, on December 3, 2019, EPA sent to OMB a preliminary regulatory determination under SDWA for PFOA and PFOS,⁵ which is the next step in the rulemaking process for establishing a maximum contaminant level (MCL) for these two substances.  And, as noted above, EPA (1) on September 25, 2019 sent OMB a supplemental proposed rule addressing TSCA SNURs for certain long-chain PFAS; and (2) on December 4, 2019 issued an ANPRM indicating that the Agency is considering adding certain PFAS to the TRI.

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If you have any questions, please contact Bart Seitz ([email protected] or 202.639.7895), Martha Thomsen ([email protected] or 202.639.7863), or Jen Golinsky ([email protected] or 202.639.7721).

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