Congress Authorizes PFAS Testing at Military Facilities Throughout US
The National Defense Authorization Act for Fiscal Year 2022 ("FY22 NDAA"), signed by the President on December 27, 2021,[i] directs the Department of Defense (“DoD”) to test for per- and polyfluoroalkyl substances (also known as “PFAS”) at military sites throughout the country.[ii] A map of formerly used defense sites can be found here: Former Sites. A map of current military installations can be found here: Active Sites. DoD must begin its assessment with a report to Congress on the status of 50 priority current and former sites within 60 days of the effective date, meaning the end of February.[iii] A map showing the locations of these sites can be viewed at the end of this article.
Groundwater contamination from use of PFAS-containing aqueous film-forming foam (“AFFF”) has already been discovered at hundreds of current and former DoD facilities, including military airports, National Guard bases, and installations controlled by the Army, Navy, Air Force, and Marine Corps. The FY22 NDAA provides $500 million in funding to DoD to fulfill Congress’ direction to test for PFAS.
DoD will first complete a preliminary assessment and site inspection testing for PFAS at all active military sites and former installations eligible for restoration funding under DoD’s Formerly Used Defense Sites Program[iv] that have been identified as contaminated by DoD as of March 31, 2021.[v] The assessment is initially limited to testing for the presence of PFAS in drinking water.[vi] In addition to testing active military installations,[vii] formerly used defense sites, and State-owned facilities of the National Guard in the United States, DoD must also test areas immediately adjacent to and down-gradient from identified military installations.[viii] Testing may be done by DoD itself, any federal agency such as the United States Army Corps of Engineers, or a private entity under contract with DoD.[ix] DoD must complete its preliminary assessment and site inspection testing on or before December 27, 2024.[x]
The FY22 NDAA directs DoD to adhere to the methods for measuring the amount of PFAS in drinking water that have been validated by EPA.[xi] EPA researchers have finalized a method for measuring eighteen PFAS in drinking water.[xii] EPA measures PFAS in drinking water in parts per trillion and recommends the individual or combined levels of PFAS in drinking water be at or below 70 parts-per-trillion (“ppt”).[xiii] However, EPA is currently reviewing and finalizing new PFAS guidance that will expand the number of tested PFAS chemicals, and likely lower the advisory guideline. Many states have adopted health-based PFAS targets much lower than 70 ppt. For example, the State of Michigan’s PFAS limits range from 8 to 16 ppt for PFOA and PFOS compounds,[xiv] and Pennsylvania recently proposed to set limits of 14 ppt for PFOA and 18 ppt for PFOS.[xv]
The FY22 NDAA creates a mandatory public reporting obligation related to DoD’s testing. DoD must first publicly disclose its timeline and general location of planned PFAS testing.[xvi] The legislation also mandates that DoD provide public notification on its website and in the Federal Register of all planned testing, and provide notice to managers of public water systems and impacted municipal governments where such testing is to occur.[xvii] DoD must then publicly disclose all results from PFAS testing conducted by both DoD and non-DoD entities, no later than 20 days after the receipt of a validated PFAS test.[xviii] However, DoD may not publicly disclose the results of PFAS testing conducted on private property without the consent of the property owner.[xix]
The FY22 NDAA requires DoD to submit to Congress a report on the status of the testing program by December 31, of FYs 2022 – 2024. The testing reports must identify each military site where testing has been completed, and the sites where testing has not yet occurred along with the projected completion date.[xx] DoD must also provide to Congress the results of completed testing, actions planned, and projected timelines to address identified contamination.[xxi]
AFFF Incineration Moratorium
In addition to DoD’s testing requirements, the FY22 NDAA established a temporary moratorium on the incineration of AFFF and other materials contaminated by PFAS until the Secretary of Defense implements eventual EPA guidance.[xxii] DoD must also submit a report on all incineration of AFFF, including the locations and facilities where incineration of PFAS-containing materials occurs.[xxiii] The law finally requires DoD to complete a review of its efforts to prevent and mitigate AFFF spills, and urges DoD to safely store all PFAS-containing materials until appropriate disposal technologies can be recommended.[xxiv] These combined efforts will reduce and even eliminate—at least temporarily—one of the largest sources of PFAS contamination on military bases.
The FY22 NDAA will only begin the military’s reckoning with PFAS contamination. Although it allocates $500 million, that will pale in comparison to the funds required to clean the contamination the military will surely find. As testing identifies more PFAS-contaminated water systems, DoD will provide public reports on PFAS contamination at those sites. These results will almost certainly lead to new funding needs to clean up groundwater, community water systems, and other contamination identified through DoD’s testing program. The cleanup will take many years to complete, but the FY22 NDAA is the first step.
The following map shows the locations of the 50 priority current and former sites. [xxv]
[i] S. 1605, 117th Cong., 1st sess; Pub. L. No. 117-81.
[ii]See Jeff B. Kray, et al., Substantial PFAS Funding in Infrastructure Act Flows Towards Protecting Water and Wastewater Systems, Marten News & Insights (Dec. 01, 2021), https://www.martenlaw.com/news...; Jessica K. Ferrell at al., EPA Announces Roadmap for PFAS Regulation with Nationwide Implications, Marten News & Insights (Oct. 20, 2021), https://www.martenlaw.com/news-and-insights/epa-announces-roadmap-for-pfas-regulation-with-nationwide-implications.
[iii] FY22 NDAA § 349(a).
[iv] See DoD Instruction 4715.07 Defense Environmental Restoration Program; 10 U.S.C. § 2703(a)(5).
[v] FY22 NDAA § 2715(a).
[vii] FY22 NDAA does not require assessment and testing of Coast Guard sites, which fall under the Department of Homeland Security.
[viii] FY22 NDAA § 345(f)(1).
[ix] FY22 NDAA § 345(a)(1)(B).
[x] FY22 NDAA § 2715(a).
[xi] FY22 NDAA § 341(d)
[xvi] FY22 NDAA § 345(b).
[xvii] FY22 NDAA § 345(d)(1)-(2)
[xviii] FY22 NDAA § 345(b)(1)-(2).
[xix] FY22 NDAA § 345(a)(2).
[xx] FY22 NDAA § 2715(c)(1)-(2).
[xxi] FY22 NDAA § 2715(c)(2)(D)-(E).
[xxii] FY22 NDAA § 343(a)-(b).
[xxiii] Section 316 of the NDAA contains an exemption under which DoD may conduct open-air burning outside the United States; however, President Biden’s signing statement indicates he does not intend to make use of this exemption. See note i, supra.
[xxiv] FY22 NDAA § 344.
[xxv] Map created by Marten Law, LLP.