The House and Senate in late June and early July approved their respective versions of FY20 defense policy legislation, and each chamber included sections to address the prevalence of per- and polyfluoroalkyl substances (PFAS) in the environment. This fall, a conference committee of lawmakers will sit down to negotiate a path forward.
The Senate acted first, on June 27 approving by a vote of 86 to 8 a defense bill (S. 1790) with a package of PFAS provisions. Senate passage came just two weeks after Senate negotiators agreed on the PFAS package, and one week after the Environment and Public Works Committee blessed it with unanimous approval following minimal debate. After the language was made public, AMWA and other water sector organizations raised concerns about the measure’s creation of a separate regulatory process for PFAS under the Safe Drinking Water Act (SDWA) and have offered to continue to work with lawmakers to address the issues.
Notable SDWA provisions included in the Senate-approved bill would:
- Direct EPA to issue a national primary drinking water regulation for PFOA and PFOS within two years;
- Require EPA to issue a drinking water health advisory within one year of finalizing a toxicity value and an effective testing procedure for a PFAS substance, unless it is determined unlikely to occur in drinking water;
- Require 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. Expenses incurred by utilities in monitoring for PFAS would be borne by the federal government;
- Require EPA to make a regulatory determination for any PFAS that is listed on EPA’s Contaminant Candidate List within 18 months of the substance’s addition to the list; and
- Require EPA to follow an expedited timetable for proposing and promulgating national primary drinking water regulation for any PFAS that receives a positive regulatory determination in the future.
Other PFAS provisions in the bill not related to SDWA would direct EPA to finalize a significant new use rule for PFAS under the Toxic Substances Control Act and list more than 200 PFAS chemicals on the Toxics Release Inventory. The bill also includes the text of an AMWA-backed measure to expand federal research into the human health effects of PFAS and other emerging contaminants.
The House followed suit by passing its own defense policy bill (H.R. 2500) on July 12. This legislation lacked the SDWA provisions, but House members added a number of PFAS-related amendments to the bill before passage. Notable among these was an amendment offered by Rep. Debbie Dingell (D-Mich.) that would require EPA to designate PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) within one year. Another accepted amendment sponsored by Rep. Chris Pappas (D-N.H.) would require EPA to add PFAS to the list of toxic pollutants under the Clean Water Act and to set effluent standards for facilities that discharge PFAS into waterways. By law, a toxic pollutant listing under the Clean Water Act would automatically designate PFAS as hazardous substances under CERCLA.
Before the amendment votes, AMWA and other water sector groups wrote to lawmakers to express opposition to the two amendments. The associations warned that designating all PFAS as hazardous substances could lead to drinking water and wastewater utilities being held liable for environmental cleanup costs if a utility had ever disposed of filtration media or biosolids on land that is subsequently found to be contaminated with PFAS. While the amendments ultimately passed on the strength of Democratic support, lawmakers speaking on the floor pledged to work with the water utility community to address concerns as a final version of defense legislation with PFAS provisions is negotiated by a conference committee later this year. That message was also delivered to AMWA directly by congressional staff.
Other PFAS amendments that were added to the House defense bill included those that would provide $5 million for a Centers for Disease Control and Prevention nationwide PFAS study, end the use of fluorine firefighting foam by 2025, require the Defense Department to work with states in mitigating PFAS contamination, require the government to conduct studies on PFAS contamination in and around military bases, authorize $5 million to a five-year study by the U.S. Geological Survey to monitor PFAS contamination nationwide, and require the Defense Department to share information on PFAS monitoring data with local municipalities.
With each chamber now having passed its version of defense policy legislation, a conference committee of House and Senate members could convene to negotiate a final bill as early as September. PFAS is certain to be a significant part of these negotiations, so AMWA intends to remain engaged with congressional staff as these discussions get underway.