House Passes PFAS Legislative Package; Senate Opposes Further Action this Congress

(January 15, 2020) – As anticipated, on Friday, January 10 the US House of Representatives voted to pass major legislation to regulate PFAS. The final package, H.R. 535, the PFAS Action Act of 2019 passed the House with a vote of 247-159, with overwhelming support from the House Democratic majority.

H.R. 535 is now pending action in the Senate. However, the Senate Republican majority has identified several concerns with the bill and indicated it will not be advanced in its current form this year. For starters, Congress just passed into law on a bipartisan basis in December 2019 numerous PFAS provisions as part of the 2019 National Defense Authorization Act (NDAA). The Senate’s own PFAS package had broad bipartisan support and many of its provisions became law through the final NDAA, leading Senators to argue that the difficult negotiations on PFAS this Congress are complete. Further, many Senators strongly oppose the H.R. 535 package because it circumvents US Environmental Protection Agency's (EPA) regulatory process by mandating certain actions under several environmental statutes, including the CERCLA/Superfund law.

NACWA and other water sector organizations share this concern about bypassing the CERCLA process which would potentially expose public utilities to significant cleanup liability. A joint letter to Congress was sent last week outlining the sector’s continued opposition to Congressionally-mandating certain PFAS compounds be designated as hazardous substances. The water sector has  argued that Congress should exercise its oversight to ensure EPA moves expeditiously to determine whether and which PFAS should be designated as hazardous substances – and set the appropriate standards and analytical tests so that clean water agencies and other impacted entities can comply – or else exempt municipal utilities from liability.

Several amendments that would impact the clean water sector were also adopted during the vote on H.R. 535 last week. An amendment was agreed to which incorporates revised language directing EPA to work aggressively to determine whether to establish Clean Water Act PFAS effluent standards, pretreatment standards, water quality criteria, and whether to list any PFAS as toxic pollutants under the Clean Water Act. NACWA worked with Congress over the past six months to improve this language from a very concerning earlier version.

The House also agreed to an amendment that would require industries to disclose to POTWs whether they are releasing any PFAS into the sewerage system. This proposal was released only days before the vote and does not appear to be fully developed.  Other key amendments advocated for by NACWA would provide new funding to help communities test and treat PFAS, helping protect water ratepayers.

NACWA and other water sector organizations greatly appreciate the efforts of many utilities and clean water professionals who have weighed in with their Congressional delegations on this issue this year. Staff continues to hear from many Congressional offices how impactful input from their local utilities has been.

NACWA is preparing a complete analysis of the final House package, including potential implications for clean water utilities, which will be distributed soon as an Advocacy Alert.  We also look forward to discussing with NACWA Members further at our 2020 Winter Conference in February.

In terms of next steps in Congress, while the Senate – and President Trump – have been clear they do not support H.R. 535, NACWA anticipates that PFAS will remain a key topic of concern throughout 2020. We expect there may be a push to incorporate PFAS provisions into other pieces of “moving” bills, such as a 2020 Water Resources Development Act (WRDA).

NACWA staff will remain closely engaged with Congress on the issue and continue working to inform the PFAS conversation and improve any proposals that gain traction. Please contact  Kristina Surfus or Jason Isakovic on NACWA staff to discuss PFAS concerns further anytime.