PFAS Provisions Excluded from FY21 NDAA, NACWA Continues to Promote More Appropriate Regulatory Path

(July 30, 2020) – In another positive step for the water sector on the PFAS legislative front, last week the U.S. House passed its version of the Fiscal Year 2021 (FY21) National Defense Authorization Act (NDAA) that excludes the contentious PFAS provisions NACWA and the water sector have advocated against over the past year in order to ensure the ongoing and proper science-driven regulatory process is able to play out.

This is in contrast to last year’s FY20 House NDAA, that aimed to designate all PFAS as hazardous under CERCLA and included problematic Clean Water Act (CWA) provisions that could create potentially serious consequences for public clean water utilities (POTWs).

While some Members of Congress tried again to secure inclusion of some of these problematic PFAS provisions in the FY21 NDAA, including the mostly partisan PFAS package that passed the House earlier this year, House Leadership ultimately rejected those proposals.

Like the Senate, which also passed its version of the FY21 NDAA last week, the House bill limits PFAS provisions to Department of Defense (DoD) related research, detection, and cleanups of military bases and facilities, as well as provides increased funding for ongoing research on human health impacts related to PFAS exposure. The House and Senate now move to conference a final FY21 NDAA, which is not expected to include any contentious PFAS provisions.

In a related development, the House accepted an amendment to last week’s omnibus appropriations package that would prohibit EPA from withdrawing their proposed rule to designate PFOA and PFOS as hazardous substances under CERCLA. In NACWA’s view, this amendment simply allows EPA to continue its ongoing regulatory work under its PFAS Action Plan and makes no such requirement that it finalize such a rule  - only that it cannot withdraw it.

The strong advocacy by NACWA members and the clean water sector over the past year have been instrumental in ensuring no legislation has been signed into law that could potentially have major unintended consequences on POTWs and that circumvents EPA’s ongoing and proper scientific and regulatory process.

At this point the next major legislative vehicle for potential inclusion of PFAS related provisions is the 2020 Water Resources Development Act (WRDA). NACWA is hopeful that the current bipartisan efforts on WRDA, along with last week’s positive PFAS developments, put the issue to rest for the remainder of this year. NACWA will continue working with Congress on legislation that follows a “polluter pays” model to make manufacturers responsible for PFAS clean up costs while protecting passive PFAS receives like POTWs from inappropriate liability.

Please contact Kristina Surfus or Jason Isakovic on NACWA’s legislative team to discuss further.