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 NDAA PFAS Deal Collapses Over Breadth of Compromise

After months of negotiations between the House and Senate National Defense Authorization Act (NDAA) conferees and key environmental committees’ leadership in both chambers, it looked like a deal was struck to scale back Superfund designation of PFAS chemicals, limiting and hazardous designation to PFOS and PFOA.  But in the final hours of seeking to wrap-up an overall NDAA agreement that Congress could approved before leaving Washington for the year, the proposed approach was deemed unacceptable by key House leaders on the issue and the decision was made to scuttle any PFAS-related Superfund mandates.

Throughout NDAA conference committee negotiations, Senators strongly opposed including the House-passed Superfund PFAS provision creating an intractable situation with House conferees, as well as key House committees with jurisdiction over water quality policy.  On Thursday, House Democrats, led by Representative Adam Smith (D-WA), Chairman of the House Committee on Armed Services, and Representative Frank Pallone (D-NJ), Chairman of the House Committee on Energy and Commerce, pulled their support for the compromise and all but buried any possibility that a final NDAA would address PFAS.  It now appears that the odds of any PFAS mandates being included in an NDAA will be limited to ensuring that the U.S. Environmental Protection Agency issue drinking water quality standards.  However, in the absence of a final formal NDAA agreement, it continues to be a situation that could change on a moment’s notice over the next several days.

USEPA Sends Proposed Rules to White House For Review

This week, the U.S. Environmental Protection Agency (USEPA) sent two proposed regulatory actions to the Office of Management and Budget (OMB) for interagency review that sets the stage for formal publication.  The actions involve the agency’s proposed determination to regulate two specific per- and polyfluoroalkyl substances (PFAS) perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) and the long awaited Water of the United States (WOTUS) rulemaking.

USEPA Administrator Andrew Wheeler stated that the proposed determination to regulate PFOA and PFOS represents USEPA “following through on its commitment in the Action Plan to evaluate PFOA and PFOS under the Safe Drinking Water Act.”  In February, the Agency released its PFAS Action Plan that outlines how USEPA plans to address the issues of contamination and treatment of PFAS chemicals.

The proposed WOTUS rule would replace the 2015 WOTUS rule and narrow the scope of jurisdiction the federal government has over water bodies and streams.  USEPA is planning to finalize the rule in January.

FY 2020 Appropriations Remain in Limbo

Congress has until December 20 to pass Fiscal Year 2020 spending bills before the current continuing resolution (CR) expires.  While most on Capitol Hill believe an agreement is within reach, there remains uncertainty whether President Trump will approve it because of the inability to finalize a Department of Homeland Security spending bill that funds the border wall initiative.  Also, complicating final passage is House Speaker Nancy Pelosi’s (D-CA) decision to direct House Democrats to draft Articles of Impeachment. The House Committee on the Judiciary Committee is expected to meet next week to write articles of impeachment and vote on whether to refer them to the full House. This timetable would set the stage for the House to debate and vote on the Articles starting December 16 and could make floor time to pass a spending bill other than another stopgap measure challenging.

If Congress is unable to pass final FY2020 spending bills by December 20, a third CR will be required for the remainder of the fiscal year or through January to keep the government funded until members return in January

Senate Confirms USDOE Secretary

The Senate confirmed Dan Brouillette to be the U.S. Department of Energy Secretary (USDOE) by a bipartisan vote of 70-15.  He replaces former USDOE Secretary Rick Perry who resigned from the position on December 1.

New Legislation

S. 2980, A bill to require the promulgation of certain standards for perfluoroalkyl and polyfluoroalkyl substances under the Federal Water Pollution Control Act, and for other purposes. – Sen. Kristen Gillibrand (D-NY)

S. 2978, A bill to ensure consideration of water intensity in the Department of Energy’s energy research, development, and demonstration programs to help guarantee efficient, reliable, and sustainable delivery of energy and clean water resources. – Sen. Catherine Cortez Masto (D-NV)

H.R. 5302, To amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize certain recycled water projects, and for other purposes. – Rep. Jerry McNerney (D-CA)

Reports and Regulation

USEPA Proposed Rule – Modernizing the Administrative Exhaustion Requirement for Permitting Decisions and Streamlining Procedures for Permit Appeals  The U.S. Environmental Protection Agency proposes a procedural rule intended to streamline and modernize part of the Agency’s permitting process by creating a new, time-limited alternative dispute resolution process (ADR) as a precondition to judicial review. Under this proposal, the parties in the ADR process may agree by unanimous consent to either extend the ADR process or proceed with an appeal before the Environmental Appeals Board.