Federal Defense Bill Establishes New PFAS Provisions, Bypasses EPA ANPRM

The 2020 National Defense Authorization Act (NDAA), signed into law in late December 2019, includes multiple provisions regarding the use and cleanup of per- and polyfluoroalkyl substances (PFAS).  The legislation sets forth multiple provisions, bypassing the Environmental Protection Agency’s Advanced Notice of Proposed Rulemaking (ANPRM), published in the Federal Register on December 4, 2019.

2020 National Defense Authorization Provisions

The NDAA details multiple new policies that will continue to phase out PFAS chemicals in commercial products, streamline the investigation and cleanup of PFAS at and near military facilities and improve education and communication about testing and cleanup between agencies and communities.  More specifically, the NDAA addresses following:

• Demands phase out of PFAS-containing firefighting foams, particularly fluorinated Aqueous Film-Forming Foam (AFFF), by October 2024
• Demands phase out of PFAS in meals ready-to-eat packaging by October 2021
• Requires Department of Defense (DoD) and municipalities and drinking water utilities near military bases to share PFAS-contamination monitoring data
• Directs DoD to establish public website to house information on PFAS testing, cleanup, exposure and treatment methodologies
• Requires DoD firefighters to undergo regular blood testing to document potential PFAS exposure starting in October 2020
• Allows use of Defense Environmental Remediation funds to address perfluorooctanoic acid and perfluorooctane sulfonate contamination at National Guard facilities
• Addition of select PFAS chemicals to the Safe Drinking Water Act’s list of unregulated contaminants
• Addition of select PFAS chemicals to the Toxics Release Inventory (TRI), subject to requirements of the Emergency Planning and Community Right-to-Know Act of 1986, better known as EPCRA
• Directs the United States Geological Survey and EPA to develop a performance standard and  sampling program for sampling of surface and ground water, soils and wells
• Directs the EPA and Secretary of Health and Human Services to establish an interagency working group on emerging contaminants
• Requires the EPA to publish a guidance document regarding the destruction and disposal of PFAS and PFAS-containing materials by February 2021; updates required every three years

PFAS are synthetic compounds that have been used for decades in a variety of consumer and industrial products, such as stain- and water-repellant fabrics, nonstick products (e.g., Teflon®), polishes, waxes, cleaning products and firefighting foams, according to the EPA.  PFAS contain very strong carbon-fluorine bonds that make them resistant to degradation and thus highly persistent in the environment and human body.  They have been linked to various adverse health effects, including cancer, kidney disease and birth and development disorders.

The U.S. Senate and House of Representatives each passed their own versions of the NDAA earlier in 2019 but came together to produce the final version of the bill.  Congressional members have said more stringent PFAS regulations were cut from the final bill, including the designation of all PFAS chemicals as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act, more commonly known as CERCLA or Superfund.

EPA Advanced Notice of Proposed Rulemaking

In contrast to the NDAA, the EPA’s ANPRM, published in the Federal Register on December 4, 2019, lists much more conservative provisions on PFAS, requesting commentary from the public and falling short of establishing any standards or regulations.

In the ANPRM, the EPA solicits comment from the public on which, if any, of the 600 PFAS chemicals currently active in U.S. commerce should be evaluated for listing in the TRI.  The EPA requests comment on how to list the chemicals and appropriate reporting thresholds given their persistence and bioaccumulation potential.  The agency also asks for any additional information on human health and environmental toxicity that would help it determine if the chemicals meet the TRI listing criteria. 

All comments, identified by Docket ID No. EPA-HQ-TRI-2019-0375, can be submitted to the EPA through February 3, 2020 via the following three methods:

If you have questions, or are interested in learning how Penn E&R can assist your company with sampling for PFAS, contact a Penn E&R professional at (215) 997-9000.