EPA Takes Action on PFAS in Waste Water

Vinson & Elkins LLP

In September 2021, the Environmental Protection Agency (“EPA”) released its Preliminary Effluent Guidelines Program Plan 15 (“Preliminary Plan 15”) which includes two new rulemakings that are intended to reduce Per- and Polyfluoroalkyl Substances (“PFAS”) in wastewater discharges by revising effluent limitations guidelines (“ELGs”) and pretreatment standards for:

  • Organic Chemicals, Plastics and Synthetic Fibers category (to address PFAS discharges from facilities manufacturing PFAS); and
  • Metal Finishing category (to address PFAS discharges from chromium electroplating facilities).

Preliminary Plan 15 is the first effort by EPA to address PFAS releases at manufacturing facilities by setting discharge limits and treatment standards. EPA’s past actions to address PFAS have included proposals concerning PFAS in drinking water as well as the release of a Toxicity Assessment for Perfluorobutane Sulfonic Acid (“PFBS”), a member of the larger PFAS group.

Background

Section 304(b) of the Clean Water Act (33 U.S.C. § 1314(b)) requires EPA to annually review, and if necessary, revise ELGs.1 ELGs are technology-based wastewater discharge standards that are developed by EPA on an industry-by-industry basis. The standards for direct dischargers are then incorporated into National Pollutant Discharge Elimination System (“NPDES”) permits issued by the states and EPA.

Under Section 304(m) (33 U.S.C. § 1314(m)), EPA prepares preliminary plans identifying new or existing industrial categories selected for ELGs or pretreatment standards rulemakings and sets a schedule for those rulemakings. Additionally, EPA’s preliminary plans identify any new or existing industrial categories selected for further review and analysis.

Preliminary Plan 15 is EPA’s 2020 annual review of effluent guidelines and pretreatment standards.

PFAS in Preliminary Plan 15

PFAS are featured significantly in EPA’s Preliminary Plan 15, demonstrating the agency’s continued attention to this collection of emerging contaminants. In addition to the two rulemakings efforts addressing PFAS, Preliminary Plan 15 commits EPA to conducting PFAS-related studies on wastewater discharges from landfills and textile and carpet manufactures. Finally, Preliminary Plan 15 provides an update on the Multi-Industry PFAS study.

The Rulemakings: Organic Chemicals, Plastics and Synthetic Fibers and Metal Finishing

Utilizing available sampling data, EPA confirmed the presence of PFAS in wastewater discharges from Organic Chemicals, Plastics and Synthetic Fibers (“OCPSF”) facilities — a group of over 1,000 chemical facilities producing over 25,000 end products (e.g., benzene, rayon, nylon, polyester, etc.). The current ELGs apply to wastewater discharges from the manufacture of products included in the subcategories covering rayon fibers; other fibers; commodity organic chemicals; bulk chemicals; specialty organic chemicals; thermoplastic resins; and thermosetting resins. In Preliminary Plan 15, EPA announced a rulemaking to revise the current ELGs to address PFAS discharges from facilities manufacturing PFAS. The OCPSF category regulates both PFAS manufacturers and formulators of PFAS.

EPA also announced a rulemaking revising the ELGs for the Metal Finishing category to address PFAS discharges from chromium electroplating facilities. Metal finishing — “the process of changing the surface of an object, for the purpose of improving its appearance and/or durability” — is related to electroplating — “the production of a thin surface coating of the metal upon another by electrodeposition.”2 Chromium electroplating applies chromium onto a metal object resulting in a mirror-like sheen and is often used in the automotive industry. EPA found that facilities utilizing PFAS-based mist/fume suppressants discharged wastewater containing PFAS.

The Studies: Landfills and Textile and Carpet Mills

In addition to the rulemakings, EPA will also conduct “detailed studies” on PFAS in wastewater discharges from landfills and textile and carpet mills. Based on information collected from the preliminary Multi-Industry PFAS Study, EPA identified wastewater discharge from textile and carpet manufacturing industries, a subset of facilities regulated under the Textile Mills ELGs, as a PFAS source resulting from the use of PFAS chemicals in such operations. Additionally, following on from a preliminary review of landfills as part of Preliminary Plan 14, EPA is in the process of gathering information in order to proceed with a detailed study regarding the impact of landfill leachate on PFAS influent and effluent concentrations in publicly owned treatment works. This includes collecting data on new pollutant control practices to address PFAS contamination in leachate, such as wastewater treatment technologies being implemented at landfills.

The Update

Alongside Preliminary Plan 15, EPA published its Multi-Industry Per- and Polyfluoroalkyl Substances (PFAS) Study – 2021 Preliminary Report. The report summarizes the results of EPA’s study of industrial discharges of PFAS from five point source categories: OCPSF manufacturing; metal finishing; pulp, paper, and paperboard manufacturing; textile mills; and commercial airports. Based on the information collected through the Multi-Industry PFAS Study, EPA determined that the development of ELGs and treatment standards for PFAS manufacturers and chromium-electroplating facilities is necessary. EPA intends to continue studying the pulp, paper, and paperboard manufacturers and textile and carpet manufacturers. The same is true for commercial airports, although EPA indicates that it is not prioritizing a rulemaking on this category at this time.

The Multi-Industry PFAS Study was announced following the release of Preliminary Plan 14 and a supporting report, The EPA’s Review of Per- and Polyfluoroalkyl Substances (PFAS) in Industrial Wastewater Discharge, published in October 2019. At that time, EPA determined additional data collection and study was required to determine how best to address industrial PFAS wastewater discharges. The Multi-Industry PFAS Study addresses the five point source categories as well as the “availability and feasibility of control practices and treatment technologies” to reduce, or eliminate, PFAS wastewater discharges.

PFAS Releases and Environmental Justice

EPA has solicited comments on Preliminary Plan 15 and noted a particular interest in comments on the Multi-Industry PFAS Study. Additionally, EPA encouraged the public to include suggestions on how best to include environmental justice (“EJ”) efforts in its ELG planning analyses. In Preliminary Plan 15, EPA notes that it is evaluating the use of its EJSCREEN tool to assess proximity and potential impacts of industrial discharges on EJ communities.

Takeaways

Although the proposed rulemakings announced in Preliminary Plan 15 are expected to take several years to come to fruition, it is clear that EPA is committed to addressing, and ultimately limiting, PFAS in industrial wastewater discharges. It is also evident that more industries, not just OCPSF, Metal Finishing, Landfills, and Textile Mills, will be subject to revised regulations by EPA as we move forward. With the continued focus on PFAS, businesses should continue to follow EPA’s actions in this area, participate in the public comment periods, and consider identifying and mitigating their potential risks associated with PFAS in their operations.

 

1 Defined as “any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance.”  33 U.S.C. § 1362(11).

2 Metal Finishing Effluent Guidelines, EPA, https://www.epa.gov/eg/metal-finishing-effluent-guidelines.  See also 40 C.F.R. Part 433.

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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