Stephanie Feingold, Jenna Ferraro, Drew Cleary Jordan
The US government took another step toward further regulation of per- and polyfluoroalkyl substances (PFAS) on December 15 with the US Senate passing the National Defense Authorization Act for Fiscal Year 2022 by a vote of 88-11, sending the legislation to President Joseph Biden’s desk for signature. While the December 7 House-passed version of the bill removed a number of more stringent PFAS-related measures addressing the US Department of Defense’s procurement abilities and compliance with stricter state cleanup standards, the bill still calls for the implementation of important measures relating to the cleanup, disposal, and study of PFAS.
PFAS, as defined by the US Environmental Protection Agency (EPA), have been used in many consumer and industry products since the 1940s. According to the EPA, PFAS can also be found in water, soil, air, food, and materials kept in our homes and at work. The National Defense Authorization Act for Fiscal Year 2022 (NDAA) requires the Department of Defense (DOD) to report on cleanup status at PFAS sites in the United States and significantly increases funding for DOD’s PFAS cleanups. The bill adds $517 million above the president’s budget request for cleaning up military communities that have been affected by PFAS contamination, and also adds $100 million to the Base Realignment and Closure accounts for remediation.
The bill also implements a temporary moratorium on disposal of PFAS-containing materials by means of incineration until the secretary of Defense implements EPA interim guidance addressing destruction and disposal. Also included is the creation of a PFAS task force within the DOD to unify the military departments’ responses to PFAS contamination.
As noted, the House dropped some PFAS-related requirements and mandates from the final text of the bill in an effort to compromise with the Senate. The abandoned measures include a requirement that would have impacted the military’s ability to acquire certain items containing any PFAS, a mandate that the military comply with state-imposed cleanup standards that are more stringent than federal standards, and a measure that would have required the EPA to create national drinking water standards for PFAS.
As to this last requirement, the EPA is already working on a proposed drinking water standard rule under the Safe Drinking Water Act for perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA), the two most well-studied PFAS. The EPA is planning to issue its proposed rule in fall 2022 and its final rule by fall 2023.
Finally, the final text of the bill excluded clarification on how the EPA would regulate PFAS disclosures under the Toxics Release Inventory and Toxic Substances Control Act (TSCA). President Biden is expected to sign the bill into law in the near term.
Additionally, on December 8, the president signed an executive order (EO) aimed at banning the federal purchase of products containing PFAS, including carpets, cookware, and furniture. The EO focuses on the purchasing of sustainable (and PFAS-free) products and is part of a newly announced “buy clean” initiative and the administration’s net-zero initiative. The EO stops short of requiring federal agencies to test for PFAS in products, instead calling on agencies to prioritize vendors that can certify PFAS-free materials. A memorandum for the heads of executive departments and agencies issued by the Office of Management and Budget, Council on Environmental Quality, and Climate Policy Office states that federal agencies should prioritize finding substitutes for products containing PFAS and to avoid purchasing certain items that contain PFAS, consistent with the EO.
These two recent measures are further examples of the federal government’s push to address, regulate, and fund the study, cleanup, disposal, and evaluation of supply chains relating to PFAS. This comes in the midst of a continued flurry of federal activity focused on PFAS and continued state regulatory and administrative action. Stakeholders and interested parties should continue to be mindful of the growing changes at the federal level as the federal government continues to catch up to its state counterparts.