Continuing an Annual Tradition, the NDAA Contains PFAS Provisions of Note | Holland & Knight LLP

The 2024 National Defense Authorization Act (NDAA) (H.R. 2670), which authorizes expenditures for the U.S. Department of Defense (DOD or Department), passed the House of Representatives on Dec. 14, 2023, and is headed to President Joe Biden for signature. The bill passed the Senate on Dec. 13, 2023, after lengthy negotiations described in a Conference Report of more than 3,000 pages. The annual, bipartisan and bicameral effort includes per- and polyfluoroalkyl substances (PFAS) provisions in Subtitle C, Sections 331-336, as it has done in prior years, including the NDAA for fiscal year (FY) 2022 (Dec. 27, 2021), which created DOD’s PFAS Task Force codified at 10 U.S.C. § 2714 and required testing for PFAS at military installations and off-base drinking water.

New Amendments

As part of the continued efforts to address the impacts of PFAS substances, Congress adopted the following amendments to this year’s version of the NDAA, which also includes substantial funding for PFAS remediation activities:

  • Section 331 provides for the modification of timing and report on activities of the PFAS Task Force. Among others, its duties include obtaining funding through federal appropriations to clean up PFAS contamination. Under the NDAA’s FY 24 amendment, reporting requirements related to PFAS substances will be reduced. Notably, the proposed modification strikes the requirement to report quarterly and changes the frequency to annually through 2029.
  • Section 332 will now require the DOD to include, with the submission of the annual budget request, a separate budget justification document on activities of the Department related to PFAS substances.
  • Section 333 concerns the transfer authority for funding of study and assessment on health implications of PFAS substances contamination in drinking water by the Agency for Toxic Substances and Disease Registry. The 2024 amendment extends authorization and funding transfer to the Centers for Disease Control and Prevention, but limits the transfer amounts to not more than $5 million during FY 2024.
  • Section 334 concerns prizes for development of technology for thermal destruction of PFAS substances. Under the amendment, the U.S. Secretary of Defense is authorized to carry out a pilot program that uses thermal destruction to dispose of PFAS substances.
  • Section 335 concerns the treatment of certain materials contaminated with PFAS substances. Under the amendment, the Secretary of Defense will be permitted to treat covered materials if the treatment of such materials occurs through the use of remediation or disposal technology approved by the relevant federal regulatory agency.
  • Section 336 concerns the U.S. Government Accountability Office’s reports on testing and remediation of PFAS substances. Under the amendment, the Comptroller General of the United States will submit a report assessing the state of ongoing testing and remediation by the DOD of current or former military installations contaminated with PFAS substances. This report shall include assessment of the state of the ongoing testing and remediation by the DOD of current or former military installations contaminated by PFAS substances, including:
  1. assessments of the thoroughness, pace and cost effectiveness of efforts of the Department to conduct testing and remediation relating to those substances
  2. recommendations to improve those efforts
  3. such other matters as the Comptroller General determines appropriate

Conclusion

Several items ended up on the cutting room floor, including provisions in the original House version that prohibited the DOD from purchasing select products made with certain PFAS compounds, including some broadly defined as containing only a single fully fluorinated carbon atom coupled with a nonfluorinated carbon atom. In addition, a provision in the House version requiring PFAS-specific health assessments of U.S. armed services personnel potentially exposed to PFAS compounds during deployment was eliminated.

Though not nearly as significant as authorization laws in prior years, the PFAS provisions represent continued efforts by the DOD to address confirmed PFAS contamination and continue efforts to expand technical knowledge through additional research funding.

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