On Dec. 17, the Senate joined the House in agreeing to the conference report to S. 1790, the Fiscal Year 2020 National Defense Authorization Act (NDAA), which includes substantive provisions addressing per- and polyfluoroalkyl substances (PFAS) at military facilities as well as across the United States more broadly.
While some of the PFAS provisions from the original House and Senate defense bills were retained in the final NDAA, several notable provisions were not included. Nevertheless, the NDAA has important implications that extend beyond the military to industries that handle or have handled PFAS-containing materials.
Major PFAS Provisions Not Included
Unlike earlier versions, the final enacted bill does not:
- Designate any PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA);
- Require the Environmental Protection Agency to list PFAS on the Clean Water Act (CWA) toxic pollutant list, nor does it require the agency to publish enforceable standards for PFAS; or
- Direct the EPA to set a national drinking water standard for any PFAS under the Safe Drinking Water Act (SDWA).
Key PFAS Provisions
- At military installations, the final bill prohibits the use of firefighting foam containing PFAS (i.e., fluorinated aqueous film-forming foam, or AFFF) after Oct. 1, 2024, and immediately prohibits the use of fluorinated AFFF in training exercises. Sections 322 to 324 prohibit the uncontrolled releases of fluorinated AFFF at military installations—except for purposes of an emergency response or aboard military ships—and call for issuance of a military specification for fluorine-free AFFF by Jan. 31, 2023.
- Section 7321 of the NDAA requires immediate addition of perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), and certain other PFAS or classes of PFAS—including “GenX”)—to the Toxics Release Inventory (TRI). Facilities that manufacture, process, or use listed PFAS in quantities of more than 100 pounds per year would be required annually to report their releases (including disposals) of such PFAS. The addition of these PFAS to the TRI becomes effective on Jan. 1, 2020; covered facilities must therefore report their calendar year 2020 PFAS releases by July 1, 2021.
- Section 7311 of the NDAA requires SDWA monitoring by most public water systems for PFAS and classes of PFAS for which the EPA has validated a method of measuring levels in drinking water. As noted above, the final bill does not require the EPA to set national drinking water standards for any PFAS under the SDWA; however, should the EPA do so, the PFAS or class of PFAS subject to a national drinking water standard would be exempt from this monitoring requirement.
- Sections 7331 to 7335 require the director of the U.S. Geological Survey to (1) establish a performance standard for detecting PFAS; and (2) use the standard to carry out a nationwide PFAS sampling program of various waterbodies and soil.
Related PFAS Initiatives
The House is likely to revisit some or all of the provisions not included in the final NDAA early in 2020. However, Senate action on these proposals is uncertain.
Regardless of congressional efforts, the EPA continues to pursue various regulatory options related to PFAS. In February 2019, the EPA released an “Action Plan” to address potential risks and contamination from PFAS. Among other initiatives, the EPA indicated that it would designate PFOA and PFOS as hazardous substances under CERCLA.
Meanwhile, this month the EPA took initial steps toward establishing a maximum contaminant level for PFOA and PFOS. Additionally, the EPA is working on a supplemental proposed rule addressing Toxic Substances Control Act Significant New Use Rules for certain long-chain PFAS; and is also considering adding certain PFAS to the TRI and seeking comment about which PFAS warrant listing.
Primary Impacts of the NDAA’s PFAS Provisions
Although the final NDAA is more limited in scope than prior versions of the bill, especially with respect to non-military requirements, the law will have important consequences.
First, while many of the PFAS provisions are military-specific, the ban on military use of fluorinated AFFF is likely to have downstream impacts in private industry. Historically, fluorinated AFFF has been important for addressing flammable liquid hazards not only at military facilities, but also at chemical plants, refineries, airports, and in various other industries.
While the efficacy of fluorine-free foam in industrial firefighting remains debated, by forcing the military to shift away from fluorinated AFFF, the legislation now has the opportunity to set the new firefighting foam standard. Airports and other private-sector facilities typically are required or encouraged to use firefighting foams that meet military specifications.
Industry, which has already been considering alternative types of firefighting foam, will therefore be mindful of the new military standard for replacement foams. Key features of replacement foams will include fire suppression capability as well as foamability, foam lifetime, and film sealability.
Second, the addition of certain PFAS to the TRI will likely result in the identification of facilities across the United States where certain types of PFAS are being used, processed, and/or disposed of, and may cause facilities to reduce their use of PFAS. The TRI requirements begin in 2021 and will mandate reporting of the subject chemical identity, and the quantities handled, disposed of, and/or released to the environment by the facility.
TRI data are regularly scrutinized by the public and non-governmental organizations to identify facilities handling particular substances, which has sometimes led to facilities becoming targets of community opposition. Moreover, facilities subject to TRI reporting must supply the EPA with information about their pollution prevention and waste minimization efforts.
As a result, TRI reporting can encourage facilities to reduce the amount of TRI chemicals they manage, opt for safer or less toxic chemicals, and/or implement improved chemical management practices.
Third, the final NDAA mandates information-gathering regarding the persistence—and sources—of PFAS in the environment, which could raise potential liability concerns for companies that have handled PFAS. PFAS manufacturers have been the focus of a wave of class actions and suits brought by state governments, but the prevalence of PFAS in a wide variety of commonly used products means that other companies also might face lawsuits.
Some states, including California, have already begun to require PFAS sampling in water systems. But by requiring public water systems to monitor for PFAS across the nation and also requiring a sampling program for waterbodies, the NDAA expands the amount of PFAS data that will be available and that could potentially serve as the basis for future claims.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
J. Barton Seitz is a partner at Baker Botts LLP in Washington, D.C. He handles a wide range of environmental, health and safety matters, including regulatory counseling, complex litigation and transactions.
Martha S. Thomsen is a senior associate at Baker Botts LLP in Washington, D.C. Her practice focuses on environmental litigation and regulatory compliance.
Jennifer Golinsky is an associate at Baker Botts LLP in Washington, D.C. Her practice focuses on litigation, federal regulatory advocacy, and state and federal regulatory compliance.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm or its clients. This article is for general information purposes and is not intended to be and should not be taken as legal advice.