Each of the differing $740-billion defense authorization bills that the House and Senate passed during the week of July 20 includes several provisions that would address pollution caused by per- and polyfluoralkyl substances (PFAS) at Dept.of Defense (DOD) facilities. But neither would classify the chemicals as hazardous materials eligible for Superfund cleanup.

Each of the bills would provide funding for research and development on PFAS remediation methods, as well as additional funding for cleanups at active DOD sites. But environmental and public health advocates say the bills do not go far enough to address PFAS contamination. They describe the measures as lost opportunities to address PFAS pollution in a significant way.

Industry groups, for their part, are also critical, at least of the House bill. They say the House measure’s PFAS provisions are troubling, and contend that they would circumvent the typical regulatory process under federal laws.

Construction organizations also say provisions in the House bill would restrict DOD procurement of PFAS-containing products beyond what was required in the fiscal 2020 defense authorization measure. That would be problematic, according to a July letter sent to lawmakers by groups including the Associated General Contractors of America, ACEC, and the U.S. Chamber of Commerce, because it could slow down construction projects, they say.

The Senate on July 22 passed its version of the National Defense Authorization Act of 2021 by an 86-14 vote, two days after the House approved a comparable, though far from identical, bill by a 295-125 vote.

Both measures garnered more than the two-thirds majority necessary to override a threatened presidential veto. But first, a congressional conference committee must negotiate differences between the two bills before a final compromise version goes to the president for his signature.

The legislation authorizes how funds will be spent each year for DOD programs,  including military construction, but the authorized funding still would require congressional appropriations.

The problems associated with PFAS—commonly found in firefighting foam at military facilities, as well as in common household products like cookware—have come into the spotlight in recent years as more has become known about PFAS’s potentially carcinogenic effects.

Over the past year, congressional lawmakers held several oversight hearings putting companies such as Dow Chemical and 3M under scrutiny for what critics call a lack of transparency about the toxicity of PFAS chemicals in their products. There is bipartisan support in both chambers to address PFAS pollution.  

Scott Faber, senior vice president of government affairs at the Environmental Working Group, said in a statement he was pleased a bipartisan group of lawmakers is continuing to keep pressure on the Pentagon to address PFAS contamination. But Faber added he was disappointed the legislation did not include “critical reforms that will do even more to kick-start the cleanup process, restrict industrial discharges and hold polluters accountable.”

For example, the House earlier this year approved a bill that would declare PFOA and PFOS—two of the PFAS compounds that have been most studied—to be "hazardous substances” under the federal Superfund law. Groups including EWG say the measure would speed up cleanups at sites with PFAS contamination.

While environmental groups push for more aggressive and immediate action on PFAS, industry organizations and water utilities note that EPA has already taken steps to regulate PFOA and PFOS under its PFAS action plan announced in February.

Tommy Holmes, the American Water Works Association’s director of legislative affairs, says, “What we object to is Congress bypassing [the regulatory process] and mandating specific regulations.”

Steve Hall, senior vice president of advocacy for the American Council of Engineering Companies (ACEC), adds, “No one disagrees that [PFAS] pose a threat to human health and the environment.” But he says the disagreement for construction industry groups and many water utilities centers on the question of “how best to address the problem of PFAS.”

The expected House-Senate conference on the defense bill isn’t likely to convene immediately. Jordan Howard, director of AGC’s federal and heavy construction division, says he expects conferees will probably be announced in September.

Sen. James Inhofe (R-Okla.), the Armed Services Committee chairman and the Senate bill’s chief GOP sponsor, said he expects the bill to be finalized in November. But Howard predicts that final votes won’t happen until the end of the year.