(November 20, 2019) –

Congressional negotiations continue to stall on how to address PFAS in the final Fiscal Year (FY) 2020 National Defense Authorization Act (NDAA). The Senate Armed Services Committee Chairman, Jim Inhofe (R-OK), recently introduced a “skinny” version of the NDAA that solely addresses key military authorizations and excludes contentious “riders” such as PFAS.

This week, the House Energy & Commerce Committee (E&C) Majority Democrats moved forward with marking up a PFAS legislative package that includes problematic provisions designating PFAS compounds as a hazardous substance under federal CERCLA/Superfund law with no exemptions for public drinking water or clean water utilities.  

The legislative package is expected to pass along a mostly party line vote.

Given E&C’s jurisdiction over the Safe Drinking Water Act (SDWA) and the Toxic Substances Control Act (TSCA), and not the Clean Water Act (CWA), a large portion of the PFAS provisions in the package focus on drinking water and manufacturing.  Aside from the CERLCA provision, NACWA has additional potential concerns with how other provisions in the package may impact public clean water utilities and is currently reviewing the bill in depth to provide members with a further detailed analysis.

Of note, unlike previously introduced legislation and provisions supported by the E&C Majority in the House passed NDAA that designated all PFAS as hazardous under CERCLA, this package only requires EPA to designate PFOA and PFOS, two of the more prominently found PFAS constituents, as hazardous substances under CERCLA within one year. The bill also requires EPA, within five years, to determine whether to designate all PFAS as hazardous individually or in groups. 

While these provisions are narrower and more targeted, NACWA continues to have concerns that the legislation circumvents the ongoing and proper scientific and regulatory process. 

Passage through the E&C Committee is just the start of a long legislative journey for this bill, which must also pass the full House and then be considered by the Senate.  NACWA member engagement will be critical to push back on problematic provisions as the bill moves forward, and the Association will inform members when contacting Congress will be most helpful. 

On the CWA front, which is under the jurisdiction of the House Transportation & Infrastructure Committee, it is still unclear at this point what Democrat House and committee leadership may do legislatively to address PFAS moving forward.

Additionally this week, the House Oversight and Government Reform Committee held a PFAS hearing on drinking water entitled “Toxic Forever Chemicals: A Call for Immediate Federal Action on PFAS.”  As part of the hearing, the committee heard testimony from actor Mark Ruffalo, who is starring in the upcoming film “Dark Waters.”  The movie illustrates significant PFAS contamination from DuPont’s Teflon manufacturing in Parkersburg, West Virginia.  The film comes out for limited release on November 22 in New York City and Los Angeles and a broader release on November 27.

While it is appearing more likely at this time that the PFAS issue will be left out of the FY20 NDAA, all of this week’s activity on PFAS by Congressional committees, along with the political and “celebrity” nature the issue has become, demonstrates that PFAS concerns will continue to be a top issue in Congress moving forward.

Please contact Jason Isakovic or Kristina Surfus, NACWA’s Legislative Directors, with any questions or for assistance.