New PFAS Regulations Included in Federal Defense Bill

The U.S. Senate and the House of Representatives Recently Passed Defense Spending Bills That Include New PFAS Regulations

The U.S. Senate and the House of Representatives recently passed defense spending bills that include new regulations of PFAS (perfluoroalkyl and polyfluoroalkyl substances). Lawmakers must now iron out the differences before the bill heads to President Donald Trump, who has expressed concerns about the PFAS provisions.

Push for Federal PFAS Regulation

PFAS substances are often referred to as “forever chemicals” because it takes so long for them to break down. The chemicals, which were formerly used in non-stick products, firefighting foam, and food packaging, have also been linked to a number of health conditions, including cancer and low birth weight.

While many U.S. manufacturers have stopped using PFAS in favor of safer alternatives, prior discharges have resulted in very high levels of PFAS in many public and private water systems. Last year, EWG estimated that 1,500 U.S. drinking water systems that supply 110 million people could have levels of PFAS that exceed what EWG deems safe.

While states like New Jersey have been proactive in setting limits for PFAS, the EPA has not yet taken official action. On February 14, 2019, the EPA released its much-anticipated action plan for addressing PFAS. While the EPA’s PFAS Action Plan outlines both short-term and long-term initiatives, final regulations are still likely years away, and the federal government has been criticized for not moving more quickly.

PFAS Provisions in Defense Spending Bill

The Senate and House recently approved amendments to the National Defense Authorization Act (NDAA) that address PFAS. The measures added to the defense bill enjoyed bipartisan support, although President Trump has already raised the prospect of veto.

The Senate version of the NDAA (S. 1790) includes several amendments addressing PFAS. It would add PFAS to the list of contaminants tracked by the U.S. Geological Survey and require public utilities to test tap water for the chemicals. The Senate version of the defense bill would also require manufacturers to report air and water discharges of many PFAS chemicals via the Toxic Release Inventory. The use of PFAS-based firefighting foam by the U.S. military would also be phased out by 2023.

The Senate’s NDAA also mandates that the EPA establish a drinking water standard, which would initially apply to PFOA and PFOS but could be later expanded after the EPA conducts further toxicity studies. The Senate amendments also call for the creation of a federal task force to study the risks posed by PFAS and similar contaminants. The Senate passed S. 1790 on June 29, 2019, by a vote of 86-8.

The House version of the NDAA (H.R. 2500) contains similar provisions with respect to PFAS regulation. One notable difference is that it would designate PFAS as “hazardous substances” under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which would make it possible to hold responsible parties liable for remediation. CERCLA also authorizes entities who have taken actions to clean up hazardous waste sites to seek monetary contribution from other parties who are also responsible for the contamination. Other PFAS measures included in the House version of the defense bill would:

• Rapidly phase out military use of PFAS in firefighting foam
• Ban the use of PFAS in military food packaging
• Increase water quality monitoring for PFAS
• Require proper incineration of military PFAS wastes
• Accelerate PFAS remediation at military facilities
• Allocate an additional $5 million for a PFAS study conducted by the Agency for Toxic Substances and Disease Registry
• Mandate that the Government Accountability Office to study Department of Defense cleanup efforts
• Establish an online health database for military members

The House overwhelmingly approved H.R. 2500 on Friday, July 12, 2019. Lawmakers in the House and Senate must now reconcile the differences in the two bills. Once the final version is approved, the NDAA would then head to President Trump for signature.

We will continue to monitor the EPA and NJDEP actions to address PFAS and post updates as they become available. For compliance assistance in this rapidly developing area of law, we encourage entities to contact a member of the Scarinci Hollenbeck Environmental Law Group.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.