EPA Issues Interim Strategy for PFAS in NPDES Permitting

Troutman Pepper

Troutman Pepper

On the evening of November 30, United States Environmental Protection Agency (EPA) announced a new interim strategy to address per- and polyfluoroalkyl substances (PFAS) in the environment through EPA-issued wastewater discharge permits under the National Pollutant Discharge Elimination System (NPDES). While some states have already begun regulating PFAS in wastewater and stormwater discharges, this policy represents a shift by EPA from focusing solely on PFAS contamination of drinking water and standard setting under the Safe Drinking Water Act, to detailing an interim NPDES permitting strategy under the Clean Water Act to address PFAS. The new interim strategy’s primary recommendation is for permit writers to consider “phased-in monitoring” of PFAS compounds.

Notably, the interim strategy recommends monitoring only those PFAS compounds for which EPA will issue analytical methods validated by multiple laboratories. Monitoring requirements will be “phased in” as the validated methods become available. There has not been an approved EPA analytical method to date because of the difficulty in differentiating PFAS compounds down to parts per trillion in the complex and diverse chemistry that makes up wastewater, but EPA expects that a validated method will be publicly available in 2021. This phased approach is intended to “help ensure that federally enforceable wastewater monitoring for PFAS can begin as soon as validated analytical methods are finalized.”

The interim strategy also offers assistance to federal, state, tribal, and local partners in enforcement strategies and public communication tools to presumably address PFAS contamination detected for the 40 PFAS compounds to be addressed in this first round of analytical testing. The new strategy also asks that permit writers consider the use of best management practices or other controls besides numeric effluent limits to minimize PFAS discharges, including stormwater discharges.

Significantly, EPA has yet to finalize Maximum Contaminant Levels (MCLs) under the Safe Drinking Water Act for PFAS compounds, much less effluent limitation guidelines for PFAS in wastewater or guidance on appropriate instream water quality standards for those limited jurisdictions where EPA issues NPDES permits (primarily Massachusetts, New Hampshire, New Mexico, the District of Columbia, tribal lands, and federal territories). Thus, if PFAS monitoring in wastewater proceeds under a new administration, or additional states and local governments elect to follow EPA’s shift in direction, there will be questions regarding what to do with any data collected and how this data may be used to inform a regulatory response. Moreover, it is unclear how the public should react to this new data in wastewater and how the public communication tools in the EPA toolbox will be received as an interim measure.

Troutman Pepper attorneys have been at the forefront of PFAS and emerging contaminant issues for years. During the past year, PFAS has been the subject of our six-part webinar series. The next part of the series is scheduled for January and will cover technical issues and chemistry. To read more about the firm’s PFAS capabilities, click here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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