Bloomberg Law
Aug. 30, 2019, 10:00 AM

INSIGHT: Defense Authorization Bill Pushes Forward on PFAS Regulations

Jeffrey  Dintzer
Jeffrey Dintzer
Alston & Bird
Gina  Angiolillo
Gina Angiolillo
Alston & Bird

The Senate passed the National Defense Authorization Act (NDAA) in June with provisions that would require the Pentagon to manage the use and remediation of per- and polyfluoroalkyl substances (PFAS) that have been found in the groundwater and on land near military bases.

In addition to heat-, grease- and water-resistant properties that make them useful in making nonstick cookware, clothing, food packaging and in other applications, PFAS can also be found in the firefighting foams used in training exercises at military bases and other locations. The PFAS provisions in the bill include a number of regulatory requirements for the compounds.

The Senate bill would direct the Environmental Protection Agency to issue maximum contaminant levels for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), two PFAS compounds.

Absent from the bill is a requirement to declare PFAS hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act or CERCLA, the Superfund law. However, the bill does expand the government’s responsibilities for response actions at military facilities.

Bills’ Similarities, Differences

The House passed its version of the NDAA (H.R. 2500) July 12 with many provisions that are similar to those in the Senate bill, with two significant differences.

The House bill mandates Clean Water Act discharge limits for PFAS but does not include the Senate’s requirement to promulgate drinking water standards. Most importantly, the House approved an amendment that would require the EPA to list PFAS substances as “hazardous” under CERCLA.

The liability implications of including some PFAS chemicals under CERCLA as hazardous substances would be far-reaching. Owners, operators, transporters, and arrangers are all jointly and severally liable for the cleanup costs at Superfund sites.

Already, cleanup of PFAS has proven difficult and costly under current methods. Although there is a debate about the “safe” exposure level, some states have enacted requirements as low as 14 parts per trillion (ppt). The EPA set a nonenforceable health advisory in 2016 for PFOA and PFOS levels in drinking water at a combined 70 ppt, while the Department of Defense has advocated for a limit of 380 ppt.

In addition, both bills would require the DOD to eliminate the use of PFAS-containing firefighting foams: by 2023 for the Senate, 2025 for the House.

Veto Threatened

President Donald Trump has indicated he would veto H.R. 2500 if it were presented in its current form. In a July 9 Statement of Administration Policy, he objected to two of the House’s provisions on PFAS, stating that “DOD has concerns, however, about meeting the 2025 military specification deadline.”

In addition, “at potentially great cost to and significant impact on DOD’s mission, the legislation singles out DOD, only one contributor to this national issue.”

This is perhaps no surprise, given the widespread use of PFAS-containing firefighting foam at military sites. The DOD has already identified over 400 sites with known or potential releases of PFAS.

If the House version of the bill passes, the DOD could have enormous liability for remediation at sites across the country. The Senate bill, even without CERCLA liability, could prove expensive for the DOD as well. Sampling conducted in 2017 revealed 1,621 groundwater wells at DOD sites that have tested above the EPA’s lifetime health advisory for PFAS.

As of 2016, the DOD had already spent over $200 million on PFAS-related investigations and response. Any additional PFAS regulations are likely to have a substantial impact on the DOD’s budget.

Budget Limitations

The House and Senate bills will now go to a joint House-Senate conference committee for reconciliation. The significant differences in each chamber’s method of managing PFAS may be difficult to navigate, despite the bipartisan effort on this issue.

The House bill sets a budget of $733 billion, while the Senate bill rings in at $750 billion.

While the bills are set for reconciliation, the two-year budget deal signed by Trump in August potentially complicates this negotiation. The deal sets the maximum defense budget at $738 billion, eliminating the shadow of a potential government shutdown and providing stability for defense budgets.

This guaranteed funding for 2020 may reduce the willingness for parties to compromise and reach an agreement on the NDAA when Congress returns from recess Sept. 9.

Despite the DOD’s opposition to PFAS regulation, it is an issue the department is already addressing. Defense Secretary Mark Esper was sworn in July 23, and in his short tenure has launched a PFAS task force.

Regardless of which provisions of the NDAA are ultimately sent to the president’s desk, the chemicals are likely to continue to be a focus for the DOD.

With the budget limit set to $738 billion, and the threat from the White House to veto the House version of the NDAA due in part to the PFAS rider, the conference committee may have an incentive to reduce the number of PFAS provisions included in the final bill.

However, PFAS regulation has proven to be a bipartisan issue, one that is “uncontroversial” in many respects. As a result, there are a number of other proposed pieces of legislation dealing with PFAS that may create additional regulations for use and cleanup of the substances whether or not these provisions make it into the NDAA.

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 and Gina Angiolillo is an associate in Alston & Bird’s Environment, Land Use & Natural Resources practice.

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