The federal government’s latest attempt at addressing public health concerns over per- and polyfluoroalkyl substances (PFAS) has taken the form of a Senate amendment to the Fiscal Year 2020 (FY20) National Defense Authorization Act (NDAA).
Background
The NDAA sets the annual budget for the U.S. Department of Defense. It “authorizes funding and provides authorities for the U.S. military and other critical national defense priorities” (FY20 NDAA Executive Summary). Like any legislation, however, the NDAA may have other, unrelated provisions attached to it. In the FY20 NDAA, some of those other provisions address PFAS contamination.
PFAS are manmade chemicals used in a variety of products and processes, including firefighting foam, water-repellent clothing, carpeting, and food packaging. Their chemical structure makes them resistant to heat, water, and oil, which in turn allows them to persist in the environment; they are sometimes called “forever chemicals.” Because of their intentional use in household items like carpet, nonstick cookware, and food packaging, and their unintentional presence in drinking water, they are ubiquitous. The EPA estimates that most people in the U.S. have been exposed to them.
There are hundreds of chemicals in the PFAS group. The two manufactured most widely in the U.S. are perfluorooctanoic acid (PFOA) and perflurooctane sulfonic acid (PFOS). Other chemicals in the group include perflurononanoic acid (PFNA), perflurohexane sulfonic acid (PFHxS), and perflurodecanoic acid (PFDeA). The human health risk from exposure to PFAS is still being studied.
The PFAS-related provisions of the FY20 NDAA fall into two categories: provisions directed to the military and provisions directed towards other federal agencies such as the Environmental Protection Agency (EPA).
Provisions affecting the military
Title X, Subtitle G, “Treatment of Contaminated Water Near Military Installations,” would provide authority for the military to address PFOA and PFOS in certain situations. First, under Section 1073, the Secretaries of the military departments, or the Secretary of Defense, “may provide water sources uncontaminated with perfluoroalkyl and polyfluoroalkyl substances, including PFOA and PFOS, or treatment of contaminated waters, for agricultural purposes used to produce products destined for human consumption in an area in which a water source has been determined pursuant to paragraph (2) to be contaminated with such compounds by reason of activities on a military installation under the jurisdiction of the Secretary concerned.” Under paragraph (2), “an area is determined to be contaminated with PFOA or PFOS if” the level of contamination is above the EPA lifetime health advisory of 70 parts per trillion, or “on or after the date the Food and Drug Administration sets a standard for PFOA and PFOS in raw agricultural commodities and milk, the level of contamination is above such standard.” Funding for provision of clean water or treatment would come from the operation and maintenance funds for the military department concerned, or from Defense-wide operation and maintenance funding.
Next, Section 1074 would authorize the Secretary of the Air Force to “acquire one or more parcels of real property within the vicinity of an Air Force base that has shown signs of contamination from PFOA and PFOS due to activities on the base and which would extend the contiguous geographic footprint of the base and increase the force protection standoff near critical infrastructure and runways.” This acquisition authority would include the authority to purchase personalty and improvements located on the real property, as well as the authority to pay moving costs and relocation benefits to those affected by the purchase. Once the real property is acquired, the Air Force would be required “to conduct such activities at…[the] property acquired…as are necessary to remediate contamination from PFOA and PFOS related to activities at the Air Force base.” Funding for the authorized land acquisitions would come from “amounts authorized to be appropriated for fiscal year 2020 for military construction or the unobligated balances of appropriations for military construction that are enacted after the date of the enactment of this Act.” For FY20, proposed appropriations for U.S. Air Force Military Construction within the continental United States totals approximately $14 trillion, broken down by installation (for example, Holloman Air Force Base[1] is currently slated to receive $20 million in military construction appropriations for FY20).
Provisions affecting other federal agencies
Title LXVII, “PFAS Release, Disclosure, Detection, and Safe Drinking Water Assistance” would require several actions by the EPA and the United States Geological Survey (USGS).
Subtitle A of Title LXVII addresses PFAS Release Disclosure through a three-tiered approach. First, certain PFAS chemicals “shall be deemed to be included in the toxics release inventory” (TRI) under Section 313(c) of the Emergency Planning and Community Right-to-Know Act (EPCRA). Beginning January 1 “of the calendar year following the date of enactment of this Act,” the chemicals listed in Section 6711(b)(1) would be deemed to be included in the TRI–primarily PFOS and PFOA and their associated salts. The reporting threshold for these chemicals would be 100 pounds.
This “Immediate Inclusion” would then be followed by “Inclusion Following Assessment” and “Inclusion Following Determination.” “Inclusion Following Assessment” would apply to PFAS or classes of PFAS for which the EPA Administrator establishes a toxicity value or finalizes a significant new use rule (SNUR), or adds to an existing SNUR or designates a PFAS as an active chemical substance under the Toxic Substances Control Act (TSCA). The reporting threshold for these chemicals would be 100 pounds.
Finally, “Inclusion Following Determination” would require the EPA Administrator to determine, “not later than 2 years after the date of enactment of this act,” whether the listed PFAS and classes of PFAS meet EPCRA Section 313(d)(2) criteria for inclusion in the TRI. If the EPA Administrator makes this determination, then the TRI shall be revised “to include that substance or class of substances not later than 2 years after the date on which the Administrator makes the determination.”
Subtitle B of Title LXVII addresses PFAS in drinking water. Sections 6721 and 6724 would amend the Safe Drinking Water Act (SDWA) to require, among other things, that “[n]ot later than 2 years after the date of enactment of this subparagraph,” the EPA Administrator shall develop a national primary drinking water standard for PFAS, including at a minimum PFOS and PFOA. The SDWA amendment would also allow the Administrator to include one or more PFAS on the list of contaminants being considered for regulation and the list of unregulated contaminants to be monitored. The Administrator then would have 18 months from inclusion on the list of contaminants being considered for regulation, or from receipt of either monitoring results or finished water data or monitoring surveys, to make a determination regarding whether to include a particular PFAS in the national primary drinking water regulation. The proposed SDWA amendments would also establish requirements for use of state drinking water revolving funds to address emerging contaminants “with a focus on perfluoroalkyl and polyfluoroalkyl substances.” A total of $500 million ($100 million for each of fiscal years 2020 through 2024), “to remain available until expended,” is authorized to be appropriated and allotted to states for the purpose of addressing emerging contaminants, with a focus on PFAS.
Subtitle C of Title LXVII addresses PFAS detection. Here, the proposed NDAA provisions require the Director of the USGS to establish a performance standard for the detection of perfluorinated compounds, and to “carry out nationwide sampling to determine the concentration of perfluorinated compounds in estuaries, lakes, streams, springs, wells, wetlands, rivers, aquifers, and soil” using that performance standard. The sampling data collected must be provided to the EPA Administrator, and to federal and state regulators on request. There is no deadline for either development of a performance standard or for completion of nationwide sampling. There are, however, authorized appropriations in connection with this provision: $5 million for fiscal year 2020, and $10 million for each of fiscal years 2021 through 2024.
Subtitle D provides for “Safe Drinking Water Assistance.” Specifically, Section 6742 would require the EPA Administrator to “review Federal efforts…to identify, monitor, and assist in the development of treatment methods for emerging contaminants, and…to assist States in responding to the human health risks posed by contaminants of emerging concern.” Then, in collaboration with various stakeholders, the Administrator must “establish a strategic plan for improving the[se] Federal efforts.” Section 6742 would also establish an interagency working group “to coordinate the activities of the Federal Government to identify and analyze the public health effects of drinking water contaminants of emerging concern,” and set in motion a national emerging contaminant research initiative, both within 180 days of enactment of the act. Finally, Section 6742 would require the Administrator to “conduct a study on actions the Administrator can take to increase technical assistance and support for States with respect to emerging contaminants in drinking water samples.” This study must be carried out not later than one year after enactment of the act, and a report describing the results of the study must be submitted to Congress not later than 18 months after enactment. Based on the report’s findings and not later than three years after enactment, “the Administrator shall develop a program to provide technical assistance and support to eligible States[2] for the testing and analysis of emerging contaminants.” Funding for implementing Section 6742 is to come from “amounts available to the Administrator” and shall not exceed more than $15 million in a fiscal year.
Finally, Subtitle E would require, among other things, publication of interim guidance for the destruction and disposal of PFAS-containing substances, including aqueous film-forming foam and textiles treated with PFAS. The interim guidance shall be revised “as the Administrator determines to be appropriate, but not less frequently than once every 3 years.” Subtitle E also requires the Administrator to undertake additional research and development activities, and authorizes appropriation of $15 million for each of fiscal years 2020 through 2024 in support of this requirement.
Effective, comprehensive solution, or road to lapse in appropriations?
On the surface, the PFAS-related amendments to the FY20 NDAA appear to address PFAS across the board, and with the force of law as opposed to the unenforceable nature of the EPA PFAS Action Plan. There are provisions requiring action by multiple federal agencies, both civilian and military[3], and either amending or drawing on the authority of existing environmental laws such as TSCA and the SDWA. If enacted, these provisions would require the EPA Administrator to promulgate a national primary drinking water standard for PFAS. Such a standard would be enforceable, unlike the EPA’s current lifetime health advisory. These provisions would also go further than any current law, regulation, or plan in attempting to establish something resembling lifetime management of PFAS, from inclusion in a SNUR to disposal and destruction. That said, resources remain an issue.
Appropriations are authorized specifically for implementation of some of the proposed requirements, but funding for implementation of other proposals must come from existing budgets, namely military operations and maintenance and/or construction funding, or EPA’s overall budget. The reality is that these budgets are already stretched to cover needs such as military training and replacement of aging infrastructure, and the day-to-day operations of the EPA. Asking any agency to do more with the same amount is asking a lot, regardless of whether the new unfunded requirement pertains to addressing a human health risk or not. In addition, requiring EPA to undertake an ongoing program of regulatory promulgation and review amounts to merely piling on to an agency that is already perceived as struggling to carry out its responsibilities under the SDWA.
The most significant authorized appropriations contained in these provisions (a total of $500 million over five fiscal years) are to be allotted to state revolving drinking water funds to address emerging contaminants, with a focus on PFAS. This may be evidence of Congress’s true intent: to push PFAS regulation down to the state level. There are numerous mandates for EPA within the bill, but if Congress is putting its money where its mouth is, then it is signaling that addressing PFAS is ultimately a state, not a federal, problem.
Including these amendments in the NDAA is an interesting strategy. Multiple smaller bills relating to PFAS are still alive in both the House and the Senate, but the FY20 NDAA amendments serve to consolidate the goals of some of those more minor pieces of proposed legislation in one larger bill that has a higher likelihood of being enacted. The risk is that if these amendments prove to be politically controversial, disagreement over them could stall the NDAA and prevent it from being enacted before the end of the current federal fiscal year, or result in the PFAS-related provisions being cut out of the bill to avoid obstructing passage of a defense budget.
For now, the FY20 NDAA is moving forward with the PFAS provisions intact–it was passed by the Senate on June 27, 2019, and received in the House a few days later. The end of the fiscal year is approaching rapidly,[4] however, and therefore little time remains to complete the legislative process and sign the bill into law. Whether that law will include requirements related to PFAS remains to be seen.
Elizabeth Rosso is an attorney at Jordan Ramis PC who focuses her practice on environmental law. Contact her at elizabeth.rosso@jordanramis.com or (503) 598-7070.
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