On December 20, President Donald Trump signed into law the National Defense Authorization Act (NDAA or Act) for Fiscal Year 2020. The NDAA includes a number of provisions that increase reporting and monitoring obligations for per- and polyfluoroalkyl substances (PFAS). By including these PFAS requirements in the NDAA, Congress has forced the U.S. Environmental Protection Agency (EPA) to accelerate the pace of actions already under consideration in the agency’s PFAS Action Plan. The NDAA is also notable for what provisions failed to make it out of conference and into the final bill. As the NDAA demonstrates, the focus on PFAS regulation at the federal level is gaining momentum and might have significant effects in several industry sectors.
In brief, the most significant obligations set forth in the NDAA will require monitoring under the Safe Drinking Water Act (SDWA), reporting requirements under the Emergency Planning and Community Right-to-Know Act Toxics Release Inventory, disclosures under the Toxic Substances Control Act (TSCA) and increased PFAS sampling by the U.S. Geological Survey. Furthermore, the Department of Defense (DOD) must phase out use of aqueous film-forming foam (AFFF) for firefighting on DOD installations by 2024, exposure to which is the subject of a number of personal injury and natural resource damages lawsuits throughout the country, many of which are consolidated in multidistrict litigation assigned to the Honorable Judge Richard M. Gergel in the U.S. District Court for the District of South Carolina (MDL 2873). DOD must also undertake blood sampling of firefighters exposed to AFFF and consider coordinated cleanup efforts with states adjacent to contaminated DOD installations.
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