A December 5, 2022, letter from Environmental Protection Agency’s (EPA) Administrator for Water, Radhika Fox, updates and supplements an April 2022 guidance released by EPA on PFAS discharges in National Pollutant Discharge Elimination System (NPDES) permits and through pretreatment programs. The letter does not contain binding recommendations but does give insight into the EPA’s recommendations and potential future plans for PFAS remediation in water systems.
- Per- and polyfluoroalkyl substances (PFAS) are a large class of synthetic fluorinated organic compounds. PFAS can repel oil and water and are produced for use as surface treatments for soil, stain, and water resistance; for textiles, paper, and metals; and most notably for fire suppression foams (aqueous film-forming foams, or AFFFs). They are used in cleaning products, cookware, leather, paint, and wire insulation.
- PFAS are water-soluble, which means that the chemicals can easily migrate long distances in groundwater or surface water. PFAS are also persistent in the environment and do not break down readily as the carbon-fluorine bonds that hold the molecules together are extremely strong.
- Congress passed the Clean Water Act (CWA) in 1972, charging the EPA to implement pollution control and wastewater standards throughout the United States. The CWA has been amended numerous times since 1972, including the 1987 amendments (see section (p)(2)(E)) that the EPA draws the regulatory authority implementing the stormwater discharge regulations it is enacting.
- The CWA makes it a crime to discharge any pollutant into waters of the United States unless a specific permit for that discharge is obtained. The EPA is currently planning on revising the definition of “waters of the United States” and a corresponding rule may be released soon.
- The National Pollutant Discharge Elimination System (NPDES) was created as part of the 1972 CWA and regulates point sources that discharge pollutants into the waters of the United States. NPDES permits, which are normally enacted by states, provide dual levels of control over water pollution through technology-based limits and water quality-based limits. Under the NPDES, water quality-based limits are to be used if technology-based limits are not sufficient to provide the level of protection necessary under the CWA. Currently, 47 states are authorized under the NPDES permitting system (the three non-authorized states are New Hampshire, Massachusetts, and New Mexico).
- Although certain NPDES permits are general permits that cover many dischargers with “similar qualities in a geographic location,” NPDES permits also can be authorized for individual facilities. Individual facilities may apply for permits from the state authority or EPA, and once the authority has reviewed the permit application materials, may issue a permit for up to five years and require the facility to reapply before the permit expiration.
- The definition of “point source” under the CWA is broadly defined under the act and therefore has been consistently litigated, like many other provisions in the CWA (an AgencyIQ article on another oft-litigated CWA provision is available here). The EPA currently defines “point source” as a “discernible, confined and discrete conveyance, such as a pipe, ditch, channel, tunnel, conduit, discrete fissure, or container” and includes vessels and other craft from which pollutants may be discharged. The definition of point source also includes concentrated animal feeding operations (CAFOs), which are currently the source of a lawsuit in the Ninth Circuit Court of Appeals.
Letter to Water Division Directors
- On December 5, 2022, Assistant Administrator for Water Radhika Fox sent a letter regarding PFAS discharges in NPDES permits to all EPA Regional Water Division Directors. The EPA had previously issued guidance in April 2022 regarding expectations where the EPA is the pretreatment control authority, and this new letter updates the April 2022 guidance and provides additional information for states that administer the NPDES program. The letter branches into two major sections addressing industrial direct dischargers and publicly owned water treatment plants, and then includes two short sections on biosolids and public notice periods for draft NPDES permits.
- The opening of the industrial direct discharger notice focuses on the types of industry categories suspected to discharge PFAS into the water system, including facilities responsible for producing organic chemicals, plastics and synthetic fibers, electroplating, textiles, and many more. Because there is no specific PFAS wastewater monitoring guidance under 40 C.F.R. Part 136, the EPA recommends utilizing the draft analytical method, Analysis of Per- and Polyfluoroalkyl Substances (PFAS) in Aqueous, Solid, Biosolids, and Tissue Samples by LC-MS/MS, published in August 2021. The agency recommended that monitoring under the method be conducted on the 40 PFAS parameters at least quarterly.
- A subsection of the industrial direct discharger portion of the letter also focuses on Best Management Practices (BMPs) that the EPA recommends regional areas use in NPDES permits for dischargers. One of the major recommended BMP conditions is the elimination of products that utilize PFAS (or at least the reduction of use of PFAS in creating those products) where there is a “reasonable alternative” available to the chemical. The Agency follows this with a recommendation for decommissioning or decontaminating equipment after switching over to a PFAS alternative, especially in electroplating facilities, so that legacy equipment that may be contaminated with PFAS does not continue to discharge PFAS into the water system. The EPA provides draft language for permits to include BMPs to reduce or eliminate PFAS as part of a discharger’s overall strategy.
- The industrial direct discharger also covers BMPs for aqueous film-forming foams (AFFFs) utilized in firefighting applications. AFFFs are a significant source of PFAS contamination at many sites around the country, as the foams are extremely effective at putting out liquid fires but can also release PFAS into the environment. The BMPs suggested for facilities that possess AFFFs include prohibitions on use of AFFFs for any use outside of firefighting, eliminating PFO and PFOS-containing AFFFs in favor of AFFFs that utilize other chemicals, and requiring immediate cleanup and diversion of areas where AFFFs have been used to prevent PFAS from reaching sewer systems.
- The EPA also made several recommendations for publicly owned water treatment plants, covering all plants and even including those that do not receive industrial discharges. One of the major recommendations focused on the use of the draft analytical method (discussed above) for monitoring quarterly PFAS concentrations in the water treatment system.
- In addition, the Agency noted that for pretreatment programs, the water systems should update information on known and potential industrial users of the water system that should potentially be subject to a pretreatment program. Based on the types of industrial users, the permits to publicly owned water treatment systems should require the system to provide information based on industrial users to the pretreatment control authorities so that plans for PFAS in the system can be advanced.
- This guidance is not binding, meaning that regional level NPDES permit issuers may choose whether to use the guidance. However, the continued interest from the EPA in remediating PFAS contamination across the country, combined with strong bipartisan support for PFAS remediation bills in Congress likely means that the regional level permit issuers will take EPA’s guidance to heart.
- The EPA is currently on the precipice of releasing several significant PFAS-related rules and guidance in the next year. The EPA will release National Primary Drinking Water Standards (NPDWS) for PFOA and PFOS and will also designate PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) by the end of 2023. In addition, the Agency is expected to publish a rule that removes a de minimis reporting exemption for PFAS by the end of next year.
Contains previous research by Walker Livingston.