Earlier this month, Congress passed The Fiscal Year 2022 National Defense Authorization Act (NDAA; S. 1605). This year’s NDAA contains several provisions that address problems relating to Per- and Polyfluoroalkyl Substances (PFAS), a summary of which is below.
The Fiscal Year 2022 NDAA contains the following PFAS related provisions:
- Reviews and Guidance Relating to the Prevention and Mitigation of Aqueous Film Forming Foam (AFFF) Spills in the Department of Defense (DoD) and Agreements with Non-DoD Entities: Not later than 180 days after this bill’s enactment, the Secretary of Defense (Secretary) shall complete reviews of efforts to prevent or mitigate spills of AFFF in the DoD and a separate review of these efforts in mutual support agreements with non-DoD entities, including state and local entities, that involve fire suppression activities in support of missions of the DoD. Each review will evaluate:
- Preventative maintenance guidelines for fire trucks and fire suppression systems to mitigate the risk of equipment failure that may result in a spill of AFFF.
- Any requirements for the use of personal protective equipment (PPE) by personnel when conducting a material transfer or maintenance activity that may result in a spill of AFFF, or when conducting remediation activities for such a spill, including requirements for side-shield safety glasses, latex gloves, and respiratory protection equipment.
- The methods by which the Secretary, or the non-DoD entity with which the Secretary has entered into the agreement, ensures compliance with guidance specified with respect to the use of such PPE or in the case of the DoD the PPE material safety data sheets.
Not later than 90 days after the reviews are completed the Secretary shall issue two sets of guidance, one for the DoD and the other for agreements with non-DoD entities, on the prevention and mitigation of spills of AFFF. This guidance will be based on the reviews’ results. The guidance will include best practices and recommendations to ensure the following:
- Supervision by personnel trained in responding to spills of AFFF of each material transfer or maintenance activity that may result in an AFFF spill.
- The use of containment berms and the covering of storm drains and catch basins by personnel performing maintenance activities in the vicinity of such drains or basins.
- The storage of materials for the cleanup and containment of AFFF in close proximity to fire suppression systems and AFFF during any transfer.
The Secretary will brief Congress’s Armed Services Committees summarizing the results of each AFFF review and guidance not later than 30 days after each guidance is issued.
- Directs the Secretary to Establish a PFAS Task Force: The Task Force will address the effects of DoD PFAS release. One of the duties of the task force will be to identify and fund the procurement of an effective alternative to PFAS firefighting foam . Not later than 90 days after this bill’s enactment and quarterly thereafter, the Chairman of the PFAS Task Force shall submit a report to Congress on the activities of the task force.
- Testing for PFAS Substances at National Guard Facilities: Not later than two years after this bill’s enactment, the Secretary shall complete preliminary assessment and site inspection testing for PFAS at all National Guard facilities located in the United States that are identified as having a release of PFAS substances.
- Extension of Funding for PFAS Study: Extends funding of a study and assessment on the health implications of PFAS contamination in drinking water by the Agency for Toxic Substances and Disease Registry. The funding was set to expire in 2021 and will now be extended to 2023.
- Temporary Moratorium on the Incineration of PFAS and AFFF Substances: 120 days after this bill’s enactment, the Secretary shall prohibit the incineration of covered materials until the earlier of the following:
- The date the Secretary issues guidance implementing the interim guidance on the destruction and disposal of PFAS.
- The date the EPA Administrator publishes in the Federal Register a final rule regarding the destruction and disposal of PFAS
Not later than one year after this bill’s enactment and annually thereafter for three years, the Secretary shall submit to the EPA Administrator and Congress’s Armed Services Committees a DoD report on all PFAS incineration.
- Public Disclosure of the Results of DoD Testing of Water for PFAS Substances: Not later than 20 days after the final result of PFAS water tests are received, the Secretary shall publicly disclose these results.
- Comptroller General Study on DoD Procurement of PFAS and Items Containing PFAS: In conducting the study, the Comptroller General shall assess the following:
- The extent to which information is available, the presence of PFAS substances in the items procured by the DoD.
- The challenges, if any, that exist in identifying the presence of PFAS in the items that the DoD procures.
- The extent to which the DoD has examined the feasibility of prohibiting the procurement of items containing PFAS.
Not later than 180 days after this bill’s enactment the Comptroller General shall brief Congress’s Armed Services Committees on the study, including any preliminary observations. After this briefing, the Comptroller General shall submit a report to the House and Senate Armed Services Committees.
- Report on the schedule of the Completion of PFAS Remediation: Not later than 270 days after this bill’s enactment the Secretary shall submit to the House and Senate Armed Services Committees a report detailing a proposed schedule for the completion of remediation of PFAS, and the associated cost estimates to perform such remediation, at military installations, facilities of the National Guard, and formerly used defense sites in the United States that are identified as having a released PFAS.
- Report on the Remediation of PFAS at Certain Military Instillations: Not later than 60 days after this bill’s enactment the Secretary shall submit to Congress a report identifying the status of efforts to remediate PFAS at 50 specific instillations.
- Funding Authorizations for Above the President’s Budget Request for PFAS:An additional $98.8 million for the Army’s Environmental Restoration Fund for PFAS clean-up.
- An Additional $167.3 million the Navy’s Environmental Restoration Fund for PFAS clean-up.
- An additional $175 million for the Air Force’s Environmental Restoration Fund for PFAS clean-up.
- An additional $74 million for the DoD’s fund for Environmental Restoration of Formerly Used Sites
- An additional $15 million for the DoD’s Environmental Security Technical Certification Program. $5 million of this additional funding is authorized for AFFF replacement, disposal, and cleanup technology. $10 million of this funding is authorized for PFAS remediation and disposal technology.
- An additional $30 million for the DoD’s Strategic Environmental Research Program. $15 million of this additional funding is authorized for AFFF replacement, disposal, and cleanup technology. The other $15 million is authorized for PFAS remediation and disposal technology.
The NDAA passed the House by a vote of 363 to 70 and passed the Senate by a vote of 88 to 11. The President signed the NDAA into law on December 27. The IAFC will continue to monitor the implementation of the PFAS provisions in this legislation.
Ryan Woodward is the IAFC's Manager of Government Relations and Policy.