Proposed Clean Water Act Effluent Limitations Guidelines/PFAS: Joint State Environmental Organizations Submit Comments to U.S. Environmental Protection Agency

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

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The Association of Clean Water Administrators, the Association of State Drinking Water Administrators, the Association of State and Territorial Solid Waste Management Officials, and the Environmental Council of the States (collectively “Associations”) submitted comments to the United States Environmental Protection Agency (“EPA”) addressing the proposed:

Clean Water Act Effluent Limitations Guidelines and Standards: Organic Chemicals, Plastics and Synthetic Fibers Point Source Category, Docket #EPA-HQ-OW-2020-0582 (“Proposal”)

A focus of the Associations’ comments are per- and polyfluoroalkyl substances (“PFAS”).

The Proposal addresses discharges from manufacturers of PFAS.

PFAS consists of a large group of man-made chemicals. Their properties include resistance to heat, water, and oil. They have been described as persistent in the environment and resist degradation. Potential exposure to PFAS include pathways through drinking water, air or food.

Several states are addressing PFAS in their Clean Water Act National Pollution Discharge Elimination System (“NPDES”) permitting or related activities. Examples include:

  • Industrial discharges
  • Public owned treatment works permits
  • Stormwater permits
  • Pretreatment

The Associations, in their May 17th comments, note that they will be potentially impacted by the effluent limit guidelines, pretreatment standards, and new source performance standards that EPA eventually promulgates for PFAS.

The Proposal is an activity being undertaken by EPA pursuant to Section 301(b) of the Clean Water Act which authorizes promulgation of national categorical standards or limits to restrict discharges of specific pollutants on an industry-by-industry basis. The effluent limits are derived from research regarding the pollution control technology used in the industry. The analysis will include the degree of reduction of a pollutant that can be achieved through the use of various levels of technology.

EPA’s development of categorical effluent limits is an ongoing process. The federal agency continues to promulgate new or upgraded categorical standards for pollutants or facilities that have not been addressed. As a result, existing categorical standards are also assessed to determine if revisions are warranted.

The Associations’ comments outline seven considerations that they believe should be taken into account in regards to the state environmental programs in relation to a future rule. The seven recommendations include:

  1. Collaborate on PFAS Data Collection and Sharing
  2. Engage with States on PFAS Generally
  3. Integrate Data Collection Opportunities into the Suite of EPA Activities into the Future, with Specific Focus on Discharge Data and Treatment Options
  4. Develop PFAS Discharge Prioritization Guidance for States
  5. Evaluate Other ELG Categories that May Apply to Industries in which PFAS Discharges Have Been Quantified or May Exist
  6. Consider Developing PFAS Standard(s) for Facilities Using PFAS in Products or Processes, Potentially Beyond the Scope Identified in this Future Rule
  7. Use Existing Data in Addition to Generating New PFAS Data.

A copy of the comments 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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