After decades of federal inaction, per- and polyfluoroalkyl substance (PFAS) contamination is an astonishingly ubiquitous public health hazard that presents a major threat to Department of Defense (DOD) installations throughout the country. Invigorated by reports claiming 678 DOD installations are confirmed or suspected of contamination, the House and Senate incorporated the text of a series of dead-on-arrival PFAS bills as amendments to the National Defense Authorization Act for fiscal year 2021The tactic is the same used in last year’s National Defense Authorization Act for fiscal year 2020 (NDAA 2020). The congenital inability of stand-alone PFAS legislation to become law on its own merit has led legislators to rely on inclusion in the NDAA. This trend portends the rhythm and mode of future PFAS reform. The NDAA, while a good outlet for slow, metronomic reform, presents unique obstacles such as a constraint to annual legislation and the inevitability of comprise at Conference Committee. This article contends that PFAS legislation is inexorably an ingredient of NDAA bill-crafting and that, as a near-sole source of federal PFAS reform, ensures for better or worse, that substantial reform will yield to incrementalism.
How a PFAS Bill Becomes Law
DOD installations are owned and operated by the federal government and thus federal action is the sole panacea avenue to improve PFAS outcomes. With the executive branch traditionally stagnant on PFAS questions, congressional legislation presents the best and most likely avenue for
A key, often underrecognized, feature of the federal legislative process is the Conference Committee. A Conference Committee is impaneled when two versions of the same bill diverge in some aspect. Differences can be relatively small or superficial, but this is rarely the case for panels reconciling omnibus legislation. Omnibus bills are packages of comprehensive legislation that may change several laws in several different policy areas, noteworthy for their exorbitant page counts and convoluted legislative language. Whether small or large, the committee’s assignment is to negotiate a consensus for all discrepancies. Conferees’ prerogatives are bound by two rules: modifications must be “within the limits of the disagreement” and no text may be added. The committee’s negotiations result in a Conference Report that must be then be voted on before it’s sent to the president. Conference Committees are especially crucial within the omnibus context because legislative chicanery scales proportionately to the size of the legislation.
NDAA 2020 Sets a Trend
In June of 2018, legislators were spurred to act when in receipt of a Health and Human Services’ Toxicological Profile for Perfluoroalkyls report detailing the breadth of contamination at DOD installations and revealing the Environmental Protection Agency’s (EPA) exposure standard inadequately demarcated safe levels from harmful levels of
Legislators seized the opportunity to resurrect their stand-alone bills as amendments to the NDAA. The NDAA is an annual omnibus bill considered “must-pass” legislation due to its importance for DOD programming and, therefore, a natural receptacle for failed bills. A number of stand-alone PFAS bills turned provisions of NDAA 2020 were signed into law. The law phases out Meal Ready, Eat (MRE) packaging produced with PFAS and prohibits use of aqueous film-forming foam (AFFF) during training exercises, with a blanket moratorium on use by 2024. In conjunction with the ban, the DOD is now responsible for improving its capacity to detect PFAS in military firefighters through blood testing. DOD must submit proposals to clean PFAS contaminants from waters adjacent to military installations and must improve means of PFAS detection in the
The bill was not without controversy as several key PFAS provisions were dropped during ConferenceIn this case, the Conference Report purged the bill of its three most consequential PFAS-related provisions. The bill no longer designated PFAS as hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act, cut the proposed limit to PFAS in drinking water consistent with the Clean Water Act, and yielded a provision forcing water utilities to reduce PFAS in drinking water consistent with the Safe Drinking Water Act. However, NDAA 2021 the following year would provide another vehicle to eventuate PFAS regulation.
Once again, stand-alone bills did not find success in 2020 making NDAA 2021 Congress’ only option to pass significant federal PFAS
S. 4049 includes provisions similar to its House counterpart, but there are key
In the year 2020, over thirty stand-alone PFAS bills were introduced in the 116th Congress each failing to become law. With H.B. 6395 and S. 4049 both passed, a Conference Committee was impaneled to decide the fate of a year’s worth of PFAS reform. The Conference Report, released on December 3, 2020, struck a balance between the more substantial House bill and the more conservative Senate bill. The Conference Report kept provisions addressing notice to local farmers regarding contamination, barring certain PFAS-infused products, and accelerating the end of firefighting foam. The conferees did drop cleanup provisions and blood testing requirements.
Reliance on an annual omnibus package is a mixed blessing. The NDAA offers refuge for PFAS legislation that otherwise would not summon a viable coalition. On the other hand, the NDAA limits ambitious lawmaking by subjecting all text to the approval of Conference Committees bent on compromise and horse-trading. Logistically, it also provides only one opening annually to pull off PFAS reform. Despite the downsides, the NDAA is now the trafficker of a firm and consistent push-forward on PFAS reform until the day stand-alone bills are politically actionable.