PFAS/Clean Water Act: U.S. Environmental Protection Agency Issues Interim Strategy for NPDES Permitting

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

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The United States Environmental Protection Agency (“EPA”) issued a memorandum titled:

Recommendations from the PFAS NPDES Regional Coordinators Committee

Interim Strategy for Per- and Polyfluoroalkyl Substances in Federally Issued National Pollutant Discharge Elimination System Permits (“Memorandum”)

The Memorandum is transmitted from EPA Assistant Administrator, Office of Water, David P. Ross to the Regional Administrators.

The Memorandum details EPA’s plans for addressing Per – and Polyfluoroalkyl Substances (“PFAS”) in National Pollutant Discharge Elimination System (“NPDES”) permits that the federal agency issues. It was developed by a workgroup that was comprised of EPA Headquarters and Regional personnel.

PFAS consists of a large group of man-made chemicals. Their properties can include resistance to heat, water, and oil. They have been described as persistent in the environment and resist degradation.

The compounds have been used in various industrial applications and consumer products such as:

  • Fabrics for furniture
  • Paper packaging for food and other materials resistant to water, grease, or stains
  • Firefighting at airfields
  • Utilization in several industrial processes

Potential human exposure to PFAS includes pathways through water, air, or food.

Concern has been expressed that POTWs may receive discharges that contain PFAS from some commercial and industrial sources. Further complications is the fact that conventional POTW wastewater treatment does not effectively remove PFAS. They may be passed through treatment to waterbodies or interfere with management of solids from the treatment process. Several states such as Michigan, Massachusetts, California, and North Carolina have begun addressing PFAS as part of their NPDES permitting program or related activities.

EPA’s focus on PFAS has previously been on contamination of drinking water and related standard setting under the Safe Drinking Water Act.

The EPA Memorandum states that the Office of Water is leading actions that include:

  • developing analytical methods for detecting PFAS in drinking water and other environmental media,
  • evaluating PFAS treatment techniques,
  • understanding PFAS exposure from various environmental media, and
  • evaluating statutory and regulatory mechanisms to manage adverse human health and environmental impacts from PFAS exposure.

Nevertheless, the Memorandum states that an interim strategy is needed to address point source discharges of PFAS in EPA-issued permits.

The workgroup was stated to have been charged with:

. . . exploring options on how to address these pollutants while the CWA framework for potentially regulating PFAS discharges pursuant to the NPDES program is under development.

As a result, the workgroup’s goal was:

. . . to develop a strategy that would serve to guide the Agency’s CWA NPDES permitting approach on an interim basis across the EPA Regions as informed by input from our state partners.

The workgroup recommendations include:

  1. Include permit requirements for phased-in monitoring and best management practices, as appropriate, taking into consideration when PFAS are expected to be present in point source wastewater discharges.
  2. Include permit requirements for phased-in monitoring and stormwater pollutant control, as appropriate, taking into consideration when PFAS are expected to be present in stormwater discharges.
  3. Information sharing on permitting practices and the development of a permitting compendium, an information sharing platform, and continuation of the workgroup.

A copy of the Memorandum can be downloaded 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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Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

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