The U.S. Senate began consideration this week of its version of the Fiscal Year 2022 (FY22) National Defense Authorization Act (NDAA), which fortunately does not include problematic PFAS provisions for the public clean water utility sector. 

Instead, PFAS provisions and amendments in the FY22 Senate NDAA are related to testing, reporting and remediation of PFAS at military bases and installations.  Debate on the Senate NDAA is expected to last all week with passage of the bill expected sometime later this week or shortly after Thanksgiving.

In September, the House passed its version of the FY22 NDAA that limits most PFAS provisions to the Department of Defense (DoD) or manufacturer requirements.  However, one concerning provision was an amendment adopted to the House bill that would require EPA to promulgate a national primary drinking water regulation for PFOA and PFOS within two years, an amendment opposed by the Association of Metropolitan Water Agencies (AMWA) and the drinking water sector.

Fortunately, neither FY22 NDAA bill includes many of the other problematic PFAS provisions that were previously included a few years ago in the FY20 House NDAA, or the recently House passed PFAS Action Act of 2021. These provisions included directing EPA to list all or certain PFAS substances as hazardous materials under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), without an exemption for utilities.

It is unlikely that any final House and Senate negotiated FY22 NDAA includes onerous PFAS provisions for public drinking water and wastewater utilities.  However, it is imperative that NACWA members and the sector continue advocating to their Members of Congress the importance of ensuring that any PFAS related legislation provides for a proper risk-based scientific and regulatory process and a “polluter pays” model to address PFAS. 

Additionally, given NACWA and the sector’s ongoing concerns about the potential liability and implications that listing PFAS as a hazardous substance under the CERCLA can have on POTWs and MS4s, whether through legislation or via regulatory fiat as outlined under EPA’s PFAS Roadmap, NACWA is continuing to work with Congress to ensure that any potential PFAS legislation includes a limited exemption for utilities under CERCLA.

For more information on the recent and ongoing PFAS legislative and regulatory developments, as well as a list of NACWA resources, please visit NACWA’s PFAS advocacy page.

Please contact Kristina Surfus or Jason Isakovic on NACWA’s Legislative team with any questions or to discuss further.