In recent years, Per- and Polyfluoroalkyl Substances, a class of so-called “forever chemicals” better known as PFAS, have become a hot button environmental issue, spurring extensive research, contentious litigation and numerous legislative and regulatory efforts aimed at monitoring or reducing PFAS use. Thus far, EPA’s primary focus has been on groundwater and drinking water; however, EPA recently signaled its intention to turn greater attention toward other potential sources of PFAS, specifically, wastewater and stormwater.
In late November 2020, EPA Assistant Administrator, David P. Ross, released a series of recommendations which encourage EPA permit writers to include PFAS monitoring, best management practices, and stormwater pollutant controls as requirements in EPA issued NPDES permits. These recommendations were developed by the recently formed PFAS NPDES Regional Coordinators Committee (“Committee”), an EPA work group comprised of staff and other contacts from USEPA Headquarters and Regional offices. The Committee’s goal was to develop an interim strategy to address point source discharges of PFAS pending development and adoption of statutory and/or regulatory frameworks for managing PFAS under the Clean Water Act. Specifically, the Committee recommended that EPA permit writers “[i]nclude permit requirements for phased-in monitoring” and “best management practices” (for wastewater discharges) or “stormwater pollutant control” (for stormwater discharges) in EPA-issued NPDES permits for facilities where “PFAS are expected to be present” in the facility’s discharge.
Little guidance is offered to permit writers as to when PFAS are “expected to be present” in wastewater or stormwater discharges. Rather, permit writers are advised to look to the raw materials stored at the facility, products or byproducts of the facility operation or available data and information from similar facilities. These methods, however, are of little use where the discharger is a publicly owned treatment works (“POTW”) or municipal separate storm sewer systems (“MS4”).
Monitoring requirements may also prove problematic, at least in the short term. Currently, there is no EPA approved multi-lab validated analytical method for monitoring PFAS in wastewater or stormwater. EPA has stated that it expects to publicly release such a method in 2021, and the Committee has proposed that PFAS monitoring requirements not take effect until after release of the new PFAS analytical method.
The above recommendations are primarily directed toward EPA permit writers and EPA-issued permits; however, the Committee also proposed development and use of a PFAS permitting compendium and information sharing platform. Adoption of these recommended resources, designed for use by federal and state permitting authorities, projects a clear message from EPA that state and tribal NPDES-permitting authorities should follow suit in considering and addressing PFAS in wastewater and stormwater permits.
Although these recommendations are not binding, implementation of the recommendations as permit requirements could have very real and costly consequences for regulated parties, including POTWs, MS4s and industrial dischargers. The lack of specific guidance in the recommendations as to appropriate best management practices or stormwater pollutant controls for PFAS is also likely to prove problematic as permit writers will be left to decide for themselves what measures to require at the permittee’s expense.
The newly issued recommendations reflect the EPA’s growing sense of urgency in regulating discharges of PFAS. Regardless of the uncertainty in how these recommendations will be implemented, what is clear is that regulatory controls for PFAS are coming soon and dischargers should begin to prepare now. For POTWs and MS4s, that may mean investigating or inventorying potential sources of PFAS into their systems through the use of surveys or baseline sampling. Industrial dischargers may consider identifying potential sources of PFAS at their facilities, updating their stormwater pollution prevention plans (SWPPP) or making plans to reduce, eliminate or treat waste streams that may contain PFAS.
True to their “forever chemicals” nickname, PFAS, and regulatory efforts to control them, are here to stay.
If you have questions regarding this article, PFAS, CWA permitting, or environmental compliance generally, please contact Sara Chamberlain or Eric Boyd in Thompson Coburn’s environmental practice area.
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