February 04, 2021

The National Defense Authorization Act: Incremental PFAS Reform on DOD Installations

John Travers

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 2021 (NDAA 21). The 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 reform. Federal legislation begins with an idea, which then must be crafted into a bill text and sponsored by a member of Congress. The bill is introduced and assigned to committee for discussion, research, and subjection to changes. After a favorable vote, the bill lands on either the Senate or House floor where it can be debated by all members. A majority vote propels the bill to the opposite house of Congress where it undergoes the same process it did in the house of origin. Both chambers of Congress must agree to the same version of the bill. The president receives that version and signage makes the bill into law. In some cases, a presidential veto introduces the additional obstacle of a 2/3 majority vote from both chambers.

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 contamination. In February 2019, the EPA responded by issuing an Action Plan with more rigorous standards, but Congress was underwhelmed and felt the need to fill the gap. A spate of bills addressing PFAS on military installations followed, but despite congressional galvanization not a single stand-alone bill passed.

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 environment. It is unlikely any of these critical reforms would have passed without admittance in the NDAA.

The bill was not without controversy as several key PFAS provisions were dropped during Conference Committee. In 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.

H.R. 6395

Once again, stand-alone bills did not find success in 2020 making NDAA 2021 Congress’ only option to pass significant federal PFAS legislation. H.R. 6395 passed the House on July 21, 2020, and provides $1.5 billion to clean PFAS contaminants and $150 million to support PFAS remediation. The bill requires a 50 percent increase in FY 2021 for a Centers for Disease Control and Prevention (CDC) study on PFAS. Manufacturers would be made to report discharges of PFAS in excess of one hundred pounds to the EPA. For military installations, the bills prohibit disposal of PFAS through burning and requires speedy publication of PFAS testing results. DOD may not purchase products that use PFAS. The National Institute for Occupational Safety and Health and the National Institute of Standards and Technology must study PFAS risks and solutions in firefighting. Finally, the bill requires DOD to notify agricultural groups if the use of AFFF has resulted in the discovery of PFAS in groundwater.

S. 4049

S. 4049 includes provisions similar to its House counterpart, but there are key differences. Like to H.R. 6395, S. 4049 requires a 50 percent increase in funds for a CDC study of PFAS contamination in drinking water. Moreover, DOD must review technologies and practices in military firefighting. The bill also distributes an additional $2 million to DOD’s Office of Sustainment in Environment, Safety and Occupational Health to address workplace and environmental contamination. In contrast, the Senate bill does not provide for mandatory testing of servicemembers, lacks remediation plan funding, and does not include the over $1 billion in PFAS cleaning support. S. 4049 passed the Senate on July 23, 2020. With a Senate and House version passed, the bill went to Conference Committee.

Conclusion

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.

    John Travers

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    John Travers is a recent graduate of the University of Maryland King Carey School of Law.