The 2020 National Defense Authorization Act (NDAA) approved by the House and Senate before Congress’ holiday break included a limited number of provisions addressing per- and polyfluoroalkyl substances (PFAS), but omitted some of the most controversial PFAS-related proposals that had been under discussion. Each chamber approved the final bill with overwhelming votes in mid-December, but House leaders have already announced plans to take up stand-alone legislation next year that will revisit many of the provisions that were cut out of the final agreement.
PFAS provisions that were passed as part of the final NDAA (S. 1790) included:
- Requiring the next round of contaminant monitoring under the Unregulated Contaminant Monitoring Rule to include all unregulated PFAS that have a validated drinking water measurement method, in addition to the maximum of 30 unregulated contaminants that may also be subject to water utility screening (however, unlike earlier versions of the proposal, the federal government would only provide funding to help small water systems conduct this monitoring);
- Authorizing an additional $500 million over five years for grants to be issued through the Drinking Water State Revolving Fund to help communities address emerging contaminants, “with a focus on” PFAS (though the funds could not be used to repay any project costs financed through tax-exempt bonds);
- Establishing a National Emerging Contaminant Research Initiative and a new federal interagency working group to improve the response, identification, analysis and treatment methods for emerging contaminants like PFAS (based on legislation that earned AMWA’s support earlier this year);
- Adding several PFAS to the Toxics Release Inventory and establishing a nationwide sampling program to detect PFAS in water bodies, including sources of drinking water; and
- Directing the Defense Department to stop using firefighting foam with PFAS after October 2024.
Left out of the bill were some of the more controversial PFAS-related policies that have been discussed over the course of the year. These include requiring EPA to designate PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), directing EPA to promulgate a national primary drinking water regulation for PFOA and PFOS within two years, expediting the Safe Drinking Water Act’s (SDWA) regulatory process for additional PFAS, and requiring EPA to issue a drinking water health advisory for a PFAS within one year of finalizing its toxicity value and an effective testing procedure. AMWA had repeatedly expressed concerns about many of these provisions, and disagreement between House and Senate negotiators ultimately led them to be dropped from the final NDAA bill.
While these most contentious PFAS provisions were not included in the NDAA, lawmakers continued to discuss them, and at times appeared close to a deal to add them to EPA’s FY20 appropriations bill. Ultimately, however, that effort failed as well, meaning that the debate on what to do about PFAS in water supplies will carry over to 2020.
House Democratic leaders are already planning their moves for the new year. House Majority Leader Steny Hoyer (D-Md.) said in a December 9 statement that the House will vote in January on the PFAS Action Act (H.R. 535), legislation approved by a House panel that includes PFAS provisions related to CERCLA and SDWA regulations that were left out of the NDAA and appropriations bills. That measure will be expected to pass the Democratic-led House, but it will likely be dead-on-arrival in the Republican Senate as a stand-alone bill. Instead, the proposal will likely be in the mix next year as Congress puts together the 2020 version of the Water Resources Development Act.