Less Implications for PFAS Under the Final National Defense Authorization Act (2020)

On Dec. 20, President Donald Trump signed the National Defense Authorization Act for 2020.1 In addition to creating the Space Force, the legislation includes several provisions meant to address Per- and Polyfluoroalkyl Substances (PFAS), including PFOA and PFOS. The act:

  • Prohibits the use of firefighting foam containing PFAS after Oct. 1, 2024 at military installations and immediately prohibits use of PFAS-containing firefighting foam in training exercises.
  • Adds PFOA and PFOS, along with other PFAS chemicals such as Gen X, to the Toxics Release Inventory. This addition becomes effective Jan. 1, 2020, and would require any facility that manufactures, processes or uses more than 100 lbs. of PFAS per year to annually report their releases and disposal of PFAS.
  • Requires most public water systems to monitor for PFAS under the Safe Drinking Water Act.

Most of the significant PFAS provisions, however, were struck from the final version. For example, the final version no longer:

  • Designates any PFAS chemicals as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (previously included on the White House’s Fall 2019 regulatory priority list).2
  • Requires the EPA to list PFAS on the Clean Water Act toxic pollutant list, nor does it require the agency to publish enforceable standards for PFAS.
  • Requires the EPA to regulate air emissions from PFAS.
  • Directs the EPA to set a national drinking water standard for any PFAS under the Safe Drinking Water Act (SDWA).

This is not to say these provisions will not be enacted or implemented in future efforts. Earlier this month, EPA announced its intent to take the next step towards establishing a maximum containment level for PFOA and PFOS.3 The timeline for such efforts, however, remains very uncertain.

PFAS are the subject of the film Dark Waters, starring Mark Ruffalo, which is inspired by the story of Taft partner Rob Bilott’s role in unveiling DuPont’s widespread PFAS contamination. See the book Exposure by Rob Bilott for a more detailed account. 

For more information regarding PFAS and related developments, contact Rob Bilott or Frank Deveau.

1National Defense Authorization Act for Fiscal Year 2020, S. 1790, 116th Cong. (2019).
2Unified Agenda of Regulatory and Deregulatory Actions, EPA/OLEM, Designating PFOA and PFOS as CERCLA Hazardous Substances, available here.
3Unified Agenda of Regulatory and Deregulatory Actions, EPA/OLEM, Regulatory Determinations for Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfate (PFOS), available here.

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