Takeaways
- On September 19, the Senate Armed Services Chairman released the final Manager’s Amendment for the National Defense Authorization Act (NDAA)—signaling that it is now time for the House and Senate to negotiate this “must-pass” legislation.
- Included in the House and Senate NDAAs are different provisions concerning PFAS that will need to be reconciled prior to passage.
- Rep. Elissa Slotkin (D-MI) introduced two bipartisan bills to reduce the presence of PFAS in Department of Defense (DoD) contracts and products; one, both or neither of the bills could be included in the final NDAA package.
With appropriations settled until December 20, Congress now has one other piece of “must-pass” legislation to address: the National Defense Authorization Act (NDAA). The NDAA authorizes the activities of the Department of Defense (DoD) for the following fiscal year and the legislation has passed on a bipartisan basis for over 60 consecutive years. Because of the nature of the bill and its legacy as a successful, bipartisan movement, the NDAA has become critical for Congress to pass each year. However, the NDAA, as with other must-pass pieces of legislation, has also become a vehicle for attaching policy items that would not otherwise pass on their own, either because they are too controversial or not popular enough. As a result, the passage of the NDAA has become more controversial in the past few years as social programs and partisan priorities have been added to the negotiation process. One area of attention in recent years addresses DoD handling of PFAS chemicals. As the House and Senate versions of the NDAA have differing provisions concerning PFAS, this will prove to be another topic that the NDAA conferees will need to negotiate in the coming weeks. Below is an overview of the PFAS provisions that may or may not be included in the final bill.
In the House of Representatives
Rep. Elissa Slotkin (D-MI) introduced two pieces of legislation addressing the presence of PFAS in DoD operations which could be included in the final NDAA: the Accelerating DoD PFAS Cleanups Act of 2024 Act (H.R. 9286) and the Prioritizing PFAS-Free Cleaning Products Act (H.R. 9288). While only one of these acts is currently included in the NDAA, as they both concern DoD operations, they could be included in the NDAA this year or next.
- H.R. 9286: The Accelerating DoD PFAS Cleanups Act of 2024The Accelerating DoD PFAS Cleanups Act would direct the Secretary of Defense to evaluate all military installations formerly used defense sites, and National Guard facilities where PFAS could be or has been released. The assessments would identify the facilities that present a greater risk to underground water contamination as well as identify mitigation measures that could be implemented to reduce risk. Based on the evaluations, the Secretary will then prioritize those facilities where early action would provide the greatest benefit to offset PFAS concerns.
- The legislation would also require the Secretary to provide notice to the Environmental Protection Agency (EPA) and the appropriate state, local and tribal authorities within 60 days of the “discovery of a release, or the threat of a release” (the latter being a term of art under the Comprehensive Environmental Response, Compensation, and Liability Act, “CERCLA” or “Superfund”) into an underground source of drinking water. The notice will be made public to the potentially affected communities and will provide a plan to provide alternative water for those communities, as needed.
- H.R. 9288 the Prioritizing PFAS-Free Cleaning Products Act
Slotkin also introduced the Prioritizing PFAS-Free Cleaning Products Act which would require the Secretary of Defense to only procure products from the Safer Choice program (or a third-party equivalent). The legislation does note that the DoD only need procure these items “to the maximum extent practicable”; allowing for some discretion on the agency’s part to determine what products could be purchased PFAS-free. The language of H.R. 9288 is included in Section 804 of the House-passed NDAA.
In the U.S. Senate
The Senate has issued two key documents relating to the NDAA—first, the NDAA as initially introduced by Chair of the Armed Services Committee, Jack Reed (D-RI) on July 8, 2024, and second, the collection of 93 amendments included in the Manager’s Package on September 19, 2024. Both of these items contain different provisions addressing DoD treatment of PFAS.
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Interim Responses to Address Release or Threatened Releases of PFAS
Section 321 of the original text, as introduced, would direct the Secretary of Defense to conduct preliminary assessments and site inspections, assess whether interim response actions need to be taken to reduce the risk of PFAS release, and provide updates on the progress of this activity to Congress. Covered facilities here are defined as facilities under the jurisdiction of the Secretary and state-owned National Guard facilities.
Like H.R. 9286, this language would require certain facilities to be assessed to determine the level of risk of PFAS contamination to neighboring water supplies and, in turn, assess what mitigation measures could be implemented to reduce the risk of the facility. Interim response actions in the Senate’s language are listed to include (a) providing bottled water, (b) connecting to public water systems of members of the public using private wells, (c) providing filtration systems for public water systems, and (d) providing filtration systems for private residences.
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Centers of Excellence for Assessing PFAS in Water Sources and Substance Remediation Solutions
One measure added in the Manager’s Package of the NDAA was section 5321: Centers of Excellence for Assessing Perfluoroalkyl and Polyfluoroalkyl Substances in Water Sources and Perfluoroalkyl and Polyfluoroalkyl Substance Remediation Solutions. The provision is designed to “dedicate resources to advancing and expanding access to [PFAS] substance detection and remediation science, research and technologies.” It sets out to achieve its goal by establishing Centers of Excellence focusing on PFAS research. Centers would be tri-institutional collaborations between research universities, rural universities and National Labs. The Centers will then focus on developing capabilities for measuring PFAS in water supplies as well as evaluating and benchmarking new PFAS removal and destruction technologies. The Centers would carry out their work starting a year after enactment and ending October 1, 2034.
Outlook for Negotiations
Traditionally, once both chambers pass their versions of the NDAA, it goes to conference—consisting of closed-door negotiations to reconcile the differences between the texts. Conference will begin in the coming weeks, starting with congressional staff identifying areas of compromise or tension. When Congress returns in November, the designated conferees from both the House and Senate will enter the debates directly to (hopefully) bring the final package over the line to enactment.
It is uncertain which provisions will be dropped during conference or which conferees will get to have their priorities added. For example, this may present an opportunity for Slotkin to have H.R. 9286 added to the final bill text. As the House and Senate versions differ on the PFAS provisions, changes will have to be made to reconcile the bills and produce one final result.
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