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For a refresher on what Per- and polyfluoroalkyl substances (PFAS) are and what Congressional action may mean for stakeholders, see the Greenberg Traurig E2 Law blog from earlier this year.   

As legislative days dwindle, Congress is in a full sprint to pass the National Defense Authorization Act (NDAA) (related blog post), among several other must-pass bills. Controversial issues, such as border wall funding, military actions related to Iran, PFAS, among others, have bedeviled congressional negotiators since the Senate (S. 1790) and House (H.R. 2500) passed their bills in early summer. As Greenberg Traurig reported in July, H.R. 2500 would designate all PFAS (over 5,000 chemicals) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), but S. 1790 does not include similar language.

Both bills contain a variety of provisions addressing PFAS pollution, and there is common ground on most of them between the House and Senate packages, and more generally, broad agreement among Republicans and Democrats that legislation is necessary to address PFAS. However, the CERCLA listing is where consensus breaks down.

This difference between the two bills has emerged as a key sticking point for lawmakers. The Pentagon – which has over 400 sites with PFAS contamination – strongly opposes the CERCLA provision in the House bill, as do many other stakeholders. Interestingly, in a September 10 House Oversight Committee hearing, DuPont announced support for listing two PFAS (PFOA and PFOS) as CERCLA hazardous substances, while other companies have consistently pushed for alternatives, such as EPA rulemaking to determine which (if any) PFAS should be listed as hazardous substances. And, on October 22, 67 House Democrats and 1 Republican announced they would vote against any NDAA package that does not include the CERCLA provision.

Signaling pessimism about the prospects for compromise on remaining issues, Senate Armed Services Committee Chairman Jim Inhofe (R-OK) introduced S. 2731 on October 30, which he has described over the past few weeks as a “skinny” NDAA bill, built around must-pass provisions, and omitting controversial items. Adam Smith (D-WA), Chair of the House Armed Services Committee, has expressed doubts about the viability of a stripped-down NDAA in the House. The new bill does not contain PFAS provisions.

The Controversy

The impact of making PFAs hazardous substances would be immediate and dramatic: a CERCLA listing would expose DOD and other public and private entities to Superfund cleanup liability, including private cost recovery litigation. Recent statements of Senator Inhofe and Rep. Smith suggest that PFAS provisions may not make the cut.

What Happens Next?

The PFAS language in NDAA bills – especially the Senate bill – came directly from still-pending PFAS-specific legislation. Attaching PFAS provisions to a different must-pass bill is, at best, a remote possibility for legislative success, because the controversy over CERCLA provisions will remain in any context. Complicating matters is that there are less than 30 days left with both chambers in session before the end of the year, and with an impeachment inquiry dominating much of the Congressional agenda, PFAS could be pushed further down the list of priorities. That said, bipartisan efforts will continue in 2020 if a solution is not reached by the end of this year.

Meanwhile, EPA continues to implement its PFAS Action Plan, including a promised determination by year-end whether to promulgate drinking water standards for PFOA and PFOS, and a rulemaking (under development) identifying PFOA and PFOS (the oldest and most studied PFAS) as CERCLA hazardous substances.

With PFAS on the radar of Congress and EPA, legislation would be one of the most notable environmental accomplishments of the 116th Congress, if lawmakers can settle their differences and get it across the finish line.

 

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Photo of Steven Barringer Steven Barringer

Steven Barringer is a member of GT’s Environmental and Government Law and Policy practice groups. Steve has a unique practice that combines substantive environmental law knowledge with deep government law and policy experience. He began his career as an attorney-adviser and Special Assistant

Steven Barringer is a member of GT’s Environmental and Government Law and Policy practice groups. Steve has a unique practice that combines substantive environmental law knowledge with deep government law and policy experience. He began his career as an attorney-adviser and Special Assistant to the Solicitor at the Department of Interior. In private practice, Steve has represented industry clients in numerous EPA rulemakings, and defended clients in enforcement actions brought by EPA and states. He has advised companies regarding compliance with federal and state environmental laws. Steve has represented parties involved at major Superfund sites – including several of the largest Superfund sites in the United States – both in remediation settlement negotiations and cost-recovery actions. He has advised clients on international treaty obligations applicable to the transboundary movement of mercury and other hazardous wastes, and has managed local counsel examining environmental laws in Central America and Europe applicable to the transboundary movement of such wastes.

Steve’s broad experience representing environmental clients led to his work on government law and policy matters. He has interacted with federal and state regulators on numerous rule-makings and policy developments. He advises clients regarding federal legislative and agency strategy, including use of the appropriations process to achieve policy goals. Steve served on an EPA advisory committee examining federal hazardous waste regulations, and was selected by the House Energy and Commerce Committee to represent industry stakeholders in negotiations to develop consensus amendments to the Resource Conservation and Recovery Act. He led an industry group advocating for reform of the federal mining laws. Representing industry clients, Steve has worked together with nongovernmental organizations to secure federal legislation banning the export of mercury from the United States.

Steve has been recognized by Who’s Who Legal as one of the top environmental practitioners representing the mining industry. One client described him as “absolutely the best.” He speaks and publishes on environmental legal and policy topics.

Photo of Katie P. Reed˘ Katie P. Reed˘

Katie is a Director in the Government Law and Policy Practice of Greenberg Traurig’s Washington, D.C. office. She represents clients before the House and Senate on issues related to agriculture, energy and environment, tobacco, and appropriations and provides legislative research and support on…

Katie is a Director in the Government Law and Policy Practice of Greenberg Traurig’s Washington, D.C. office. She represents clients before the House and Senate on issues related to agriculture, energy and environment, tobacco, and appropriations and provides legislative research and support on a broad range of matters.

Katie is experienced in political compliance matters such as congressional ethics rules; state and federal lobbying guidelines and reporting requirements; and state, federal, and local campaign finance compliance regulations. Katie advises a variety of corporate clients on compliance with the Lobbying Disclosure Act and Federal Election Commission regulations specific to political action committees (PACs) and fundraising guidelines. She manages federal and state lobbying reporting requirements for corporate clients and handles FARA filings for various foreign clients. In her over 12 years of campaign finance experience, Katie has managed a wide range of PACs at the state and federal level. She assists clients with the establishment of PACs, fundraising techniques, and the management of everyday PAC operations and periodic reporting requirements.

˘not admitted to the practice of law.