Congress Releases Final NDAA Bill, Controversial PFAS Provisions Excluded

(December 11, 2019) – In an important legislative achievement for NACWA and the clean water sector, House and Senate negotiators released their compromise Fiscal Year 2020 National Defense Authorization Act (NDAA - the full report and summary are viewable online) earlier this week and excluded the most problematic PFAS provisions. 

Significantly for the clean water sector, the final package does not include a provision to designate PFAS as hazardous substances under CERCLA, which would have created potential Superfund liability for public clean water utilities. The final package also does not mandate that EPA develop Clean Water Act pretreatment standards for PFAS, as had been included in the House-passed NDAA.

NACWA and its members have strongly advocated over recent months against inclusion of these provisions, and the Association considers their exclusion from the NDAA very positive for the water sector as it affirms the need for a science-driven regulatory process around PFAS. In contrast, the proposals of concern would have put Congress in the position of predetermining the outcome of EPA’s risk-based regulatory process.

NACWA is pleased that the final NDAA bill reflects the complex nature of the PFAS issue by leaving out policy provisions that are not supported by solid, risk-based scientific analysis.  However, the Association recognizes the importance of addressing PFAS to advance protection of public health and the environment.  NACWA is committed to engaging with Congress and other stakeholders to address this critical issue through appropriate regulatory processes in the New Year. 

The Association is grateful to the many individual utilities and members were active in reaching out and educating their Congressional delegation about these concerns. NACWA has worked closely with other national, state and regional associations on PFAS issues and will continue doing so moving forward.

Final NDAA Provisions

The final NDAA includes various PFAS provisions for the Department of Defense (DOD), which is within the jurisdiction of the NDAA.

For example, the bill directs DOD to stop using PFAS-containing firefighting foam by October 2024 (except on ships) and requires blood testing of military firefighters; bans the use of PFAS in military field ration packaging; directs the National Guard to use Defense Environmental Remediation funds to address PFOA and PFOS contamination at National Guard bases; and provides a small amount of PFAS research funding. The NDAA also directs the U.S. Comptroller General to review DOD efforts to clean up PFOA and PFOS and mitigate public health impacts from these compounds at military bases.  

Beyond the DOD, the legislation also mandates certain PFAS chemicals be included on the Toxics Release Inventory, subject to requirements under the Emergency Planning and Community Right-To-Know Act, as well as requires EPA, under the Toxic Substances Control Act (TSCA), to finalize by June of 2020 a Significant New Use Rule for Long-Chain PFAS. The bill directs the U.S. Geological Survey (USGS) and EPA to establish a performance standard for detecting highly fluorinated compounds in the environment and to develop a sampling program to advance credible understanding of PFAS levels in water and soils around the country.

Additionally, the bill also requires EPA to establish an interagency working group on emerging contaminants and establish a National Emerging Contaminant Research Initiative to advance identification, analysis, monitoring and treatment methods. This provision will go beyond PFAS, advancing science-based federal efforts to consider emerging contaminants. Under the Initiative, research may be conducted by state or local agencies, non-profit research organizations, and universities and private entities.  

Lastly, but of particular interest to the clean water sector, the NDAA also requires EPA to publish interim guidance within a year regarding the destruction and disposal of PFAS substances and PFAS-containing materials, which include biosolids and spent water treatment filters and materials, as well as firefighting foams, textiles, manufacturing waste streams, and landfill leachate. NACWA is planning to engage with EPA as it works to develop interim guidance that could impact the sector.

Next Steps on NDAA

Overall, it is clear the final package will increase federal involvement on PFAS, reduce exposure from the military, and move the ball forward on understanding the risks and pervasiveness of PFAS.

While the final bill was agreed to by top Democratic and Republican negotiators, some Democrats expressed frustration that their negotiators did not secure more stringent PFAS regulations. In the last few days, key Democratic negotiators such as House Energy & Commerce Committee Chairman Pallone (D-NJ) determined that priorities such as a drinking water MCL and CERCLA designation, would emerge too weak from the NDAA so elected to punt and move forward with this narrower NDAA package.

Chairman Pallone is already planning to push for a House Floor vote for his Committee’s more aggressive PFAS package in the new year and House Democratic leadership has expressed intent to bring the package to the House Floor in January.  However, the House E&C Committee package does not have a clear path forward in the Senate, leading many Members of Congress to support this NDAA deal as the best next step forward.

In terms of next steps, the U.S. House may take up the NDAA as soon as this week. If it passes the House, which is likely but not certain, the Senate could vote and send the package to President Trump for signature before the years’ end.

Looking Ahead

NACWA is already looking beyond the NDAA to next steps on PFAS in Congress. With growing concerns around PFAS risks, the Association anticipates congressional focus will stay strong on PFAS moving forward, alongside state efforts. Members of Congress will continue working to advance their priorities and PFAS issues are anticipated to impact negotiations on the 2020 Water Resources Development Act (WRDA) or re-emerge in the Fiscal Year 2021 NDAA.

NACWA stands ready to work with Congress going forward on PFAS, advancing scientifically sound, risk-based determinations to drive PFAS management and hold polluters, not the public, accountable. Ensuring a risk-based regulatory path forward on PFAS is critical to advance cleanups and reduce exposures where necessary to protect public health and the environment.

The Association continues to engage with Congress and looks forward to more strong engagement by NACWA members moving forward on this complex issue. We encourage members to review NACWA’s PFAS Advocacy Page for the latest resources, or contact NACWA staff – Kristina Surfus or Jason Isakovic, Legislative Directors or Emily Remmel, Regulatory Director – anytime.