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INSIGHT: Congress Confronts PFAS in National Defense Authorization Act—What You Need to Know

March 20, 2020, 8:01 AM

The National Defense Authorization Act for Fiscal Year 2020 takes significant steps to address per- and polyfluoroalkyl substances (PFAS) contamination throughout the U.S., including communities in or near military bases.

The NDAA, signed into law Dec. 20, 2019, by President Donald Trump, and forthcoming regulatory action from the EPA will directly impact industries that manufacture, process, or utilize PFAS chemicals.

PFAS are a group of approximately 5,000 synthetic organic compounds that have been used for decades. They are found in a wide-range of commonly used products, including non-stick cookware, food packaging, water-resistant fabrics, and firefighting foam—or aqueous film forming foam (AFFF). Some of the main contributors to PFAS contamination include PFAS manufacturing and processing facilities, airports, and military installations that use AFFF. Most people in the U.S. have been exposed to PFAS.

PFAS chemicals have been detected in the drinking water of 19 million Americans across 49 states. Approximately 305 military installations nationwide have used AFFF, which have likely contaminated drinking water and groundwater on or around the bases.

PFAS contamination has generated increased concern from Congress. In February 2019, the EPA issued its Action Plan for PFAS, which describes how the EPA would address and prevent PFAS contamination. But Congress was underwhelmed by the Action Plan, which only addressed two of the several thousand PFAS chemicals—PFOA and PFOS. Accordingly, Congress stepped in and passed the NDAA.

Further Actions, Litigation on PFAS

Further additions to the Toxic Release Inventory (TRI) list are on the horizon. The EPA published Dec. 4, 2019, an Advanced Notice of Proposed Rulemakingto solicit information from the public to add certain PFAS to the TRI list. The EPA is also considering establishing reporting thresholds for PFAS that are lower than the usual statutory thresholds.

The EPA proposed a supplemental Significant New Use Rule Feb. 20 to ensure the EPA is notified before anyone begins or resumes the import of long-chain PFAS chemical substances as part of surface coatings.

The EPA released its PFAS Action Plan: Program Update Feb. 26, which outlines the agency’s short- and long-terms goals on PFAS issues.

And as the government continues to regulate, the public continues to litigate. PFAS-related litigation has exploded across the country. Environmental activist organizations sued the DOD Feb. 20 over its contracts to burn unused PFAS in incinerators.

In the months and years to come, the public can certainly expect more regulation and litigation related to the widespread use and accumulation of PFAS.

Monitoring, Reporting, and Cleanup Provisions

The NDAA adds 172 PFAS chemicals to the EPA’s Toxic Release Inventory (TRI), which tracks the management of certain toxic chemicals that may pose a threat to human health and the environment. The PFAS additions became effective on January 1, 2020. Accordingly, facilities that manufacture, process, or otherwise use PFAS must report releases of these chemicals by July 1, 2021.

In addition, the NDAA provides a framework for PFAS to be added automatically to the TRI list. For example, the NDAA automatically adds a PFAS to the TRI list in response to the EPA finalizing a toxicity value for it.

The NDAA also requires public water systems serving more than 10,000 persons to monitor PFAS under the Safe Drinking Water Act.

Finally, the NDAA amends the Toxic Substances Control Act (TSCA) to require the EPA to promulgate a rule requiring any person that has manufactured a PFAS substance since Jan. 1, 2011, to submit to a report documenting their PFAS manufacturing activities.

Department of Defense Requirements

Given the military’s longstanding use of AFFF and documented PFAS contamination in water supplies near military installations, the NDAA contains several requirements that apply to the Department of Defense (DOD).

The most sweeping provisions require the DOD to phase out its use of AFFF at all military installations by Oct. 1, 2024, with limited exceptions, and immediately stop military training exercises with AFFF. The secretary of the Navy must publish specifications for PFAS-free firefighting foam at all military installations and ensure that the foam is available for use by Oct. 1, 2023.

The DOD must also enter into agreements with municipalities and water utilities located adjacent to military installations to share monitoring data related to PFAS and other emerging contaminants of concern.

Finally, the NDAA bans the use of PFAS in military Meals Ready-to-Eat (MREs) packaging after Oct. 1, 2021.

What Was Left Out of the NDAA?

Notably, the NDAA did not go as far as some members of Congress had hoped. The final version of the NDAA dropped provisions that would have: (1) designated 4,000 PFAS as hazardous substances under CERCLA; (2) restricted PFAS discharges into drinking water supplies under the Clean Water Act; and (3) required water utilities to reduce the amount of PFAS in tap water under the Safe Drinking Water Act.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Jeffrey Dintzer is a partner with Alston & Bird and has over 30 years of experience representing companies in the energy, manufacturing, and defense industries in high-stakes administrative proceedings and civil litigation involving the environment, land use entitlements, and oil and gas.

Gregory Berlin is an associate with Alston & Bird’s Environment, Land Use & Natural Resources Group. He has particular experience litigating issues related to land use, development, energy, water quality, and endangered species.

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