Overview
With Congress focused on passing a limited number of bills this year due to COVID-19, environmental advocates have set upon the annual National Defense Authorization Act (NDAA) process as a vehicle for stringent regulation of per- and polyfluoroalkyl substances (PFAS). The NDAA, which establishes policy and authorizes funds for the Department of Defense (DOD) and other national security priorities, has been signed into law every year for decades.
Entities doing business with the DOD, operating within the PFAS supply chain, or selling end-products that contain any of the over-5,000 types of PFAS compounds should carefully consider an active role in this debate. Here are some of the policy changes that Congress will consider in the coming weeks:
- The PFAS Action Act (H.R. 535), in its entirety, is likely to be offered as a floor amendment when the House considers its version of the NDAA after they return from recess. The legislation, which passed the House earlier this year as a free-standing measure, though largely along partisan lines, is something of a wish list for anti-PFAS members of Congress. It would—among other things—designate certain PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), essentially ban the future production of new PFAS under the Toxic Substances Control Act (TSCA), mandate comprehensive toxicity testing on all PFAS, and require promulgation of a national primary drinking water regulation for certain PFAS.
- An amendment adopted by the House Armed Services Committee would prohibit DOD procurement of certain PFAS-containing products, including non-stick cookware or food service ware for use in galleys or dining facilities; food packaging materials; furniture or floor waves; carpeting, rugs, or upholstered furniture; personal care items; dental floss; and sunscreen. These terms are not defined, and their scope—particularly with respect to “personal care items,” which could include everything from medical devices to our service members’ uniforms—would presumably be left to the DOD to define.
- A requirement that DOD meet the most stringent state/federal cleanup standards when conducting PFAS removal or remediation actions under CERCLA.
The House Armed Services Committee approved its version of the NDAA, as amended, by a vote of 56-0 on July 2. Up next, the House is likely to schedule floor votes soon, possibly the week of July 20.
Similarly, the full Senate is in the late stages of its NDAA consideration, with a final vote probable the week of July 20. Although at this stage no important PFAS-related provisions are anticipated in the final product, Sen. Richard Blumenthal (D-CT) has filed an amendment mirroring the House DOD procurement measure.
The House inclusion of significant PFAS provisions in its version of the NDAA ensures that those issues will be debated in conference with the Senate. We expect that the Republican-led Senate will reject most, if not all, of the bolder PFAS proposals, but there can be no guarantees. Indeed, last year’s NDAA process was protracted in significant part because of similar issues.
Beyond the FY 2021 NDAA, however, just the fact that the House and Senate will be debating PFAS policy for the balance of the year in must-pass legislation could set the stage for action in the next Congress and beyond.
Under the circumstances, companies that have a presence in (or are affected by) any stage of the PFAS supply chain should pay close attention to the NDAA process. Now is the time to leverage trade associations, Washington representatives, and even employees to register concerns with members of Congress.