On December 20, President Donald Trump signed into law the National Defense Authorization Act (NDAA or Act) for Fiscal Year 2020. The NDAA includes a number of provisions that increase reporting and monitoring obligations for per- and polyfluoroalkyl substances (PFAS). By including these PFAS requirements in the NDAA, Congress has forced the U.S. Environmental Protection Agency (EPA) to accelerate the pace of actions already under consideration in the agency’s PFAS Action Plan. The NDAA is also notable for what provisions failed to make it out of conference and into the final bill. As the NDAA demonstrates, the focus on PFAS regulation at the federal level is gaining momentum and might have significant effects in several industry sectors.

In brief, the most significant obligations set forth in the NDAA will require monitoring under the Safe Drinking Water Act (SDWA), reporting requirements under the Emergency Planning and Community Right-to-Know Act Toxics Release Inventory, disclosures under the Toxic Substances Control Act (TSCA) and increased PFAS sampling by the U.S. Geological Survey. Furthermore, the Department of Defense (DOD) must phase out use of aqueous film-forming foam (AFFF) for firefighting on DOD installations by 2024, exposure to which is the subject of a number of personal injury and natural resource damages lawsuits throughout the country, many of which are consolidated in multidistrict litigation assigned to the Honorable Judge Richard M. Gergel in the U.S. District Court for the District of South Carolina (MDL 2873). DOD must also undertake blood sampling of firefighters exposed to AFFF and consider coordinated cleanup efforts with states adjacent to contaminated DOD installations.

What’s In — Increased Monitoring and Release Disclosure Requirements

Title LXXIII of the NDAA, or the PFAS Act of 2019, adds PFAS to the list of unregulated contaminants that must be monitored by public water systems under the SDWA’s Unregulated Contaminant Monitoring Rule, though the specific PFAS chemicals included will not be identified until EPA promulgates the fifth iteration of the rule.

On the release disclosure side, EPA must add a number of PFAS compounds to the Toxics Release Inventory for reporting of inventories greater than 100 pounds, to include: 

  • perfluorooctanoic acid (PFOA) and associated salts
  • perfluorooctane sulfonic acid (PFOS) and associated salts
  • hexafluoropropylene oxide dimer acid (GenX — a substance widely seen as a safer replacement for PFOA)
  • perfluorononanoic acid (PFNA)
  • perfluorohexanesulfonic acid (PFHxS)
  • other PFAS compounds already listed as active chemical substances under TSCA

EPA must revisit this list and consider additional compounds in two years.

Related to the Toxics Release Inventory requirements, EPA must take action by 2023 under Section 8(a) of TSCA to require individuals to report all PFAS manufacturing activities as far back as 2011. Finally, by June of this year, EPA must finalize its 2015 proposed rule entitled “Long-Chain Perfluoroalkyl Carboxylate and Perfluoroalkyl Sulfonate Chemical Substances; Significant New Use Rule,” 80 Fed. Reg. 2885 (January 21, 2015), which would remove a reporting exception for individuals importing PFAS for use in carpet manufacturing.

While these requirements do not create any affirmative cleanup or remediation obligations, they do heighten the spotlight on PFAS manufacturing and use.

What’s Out — PFAS Cleanup and Control Requirements

Though the PFAS requirements included in the NDAA are by no means trivial, the bill failed to include a number of substantial changes proposed in respective Senate and House versions. Notably, the Senate had proposed to require EPA to promulgate drinking water standards, or maximum contaminant levels for PFOA and PFOS, which the Congressional Budget Office estimated would result in costs exceeding several billions of dollars in the first five years. Though EPA has issued a drinking water health advisory level for PFOA and PFOS of 70 parts per trillion, this level does not impose any affirmative regulatory requirements and is higher than many state standards. The House had separately proposed to designate PFAS as a “hazardous substance” under Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) and impose effluent and pretreatment standards for PFAS under Section 307(a) of the Clean Water Act.

These cleanup and control requirements are still on the minds of regulators, however, as a number of standalone bills in both chambers include the provisions that failed to make it into the NDAA. For example, HR 535, which includes the PFAS CERCLA provision noted above, is working its way through the House’s Energy and Commerce Committee and saw a slew of additional sponsors shortly after passage of the NDAA.

Continued State Action

Regardless of the NDAA, several states, including California, New Jersey and New York continue to regulate PFAS aggressively, including drinking water advisories and standards far below the 70 ppt EPA advisory level. This patchwork of regulations raises concerns about the burdens, costs and consistency for businesses present in multiple states. However, federal environmental laws generally embrace federalism — allowing states to lead in areas of environmental regulation and protection. Some federal environmental laws pre-empt states from setting more stringent regulations, but neither the NDAA nor the other pending proposed legislation would expressly pre-empt state action on PFAS.