Regulation of PFAS in Wastewater Permits: Recent Guidance and Rulemaking Actions by EPA

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A recent rulemaking from EPA seeks the assistance of industry and the public in developing new effluent limitation guidelines to regulate per- and polyfluoroalkyl substances (“PFAS”) in wastewater discharges from facilities manufacturing or formulating these compounds. PFAS are a group of chemical compounds found in a wide array of consumer and industrial products and are widespread and persistent in the environment. Evidence has shown continued exposure to PFAS above certain levels may lead to adverse health effects. For several years EPA and the states have studied the impact of PFAS on human health and the environment and have worked toward regulation of the compounds.

EPA’s March 17, 2021 Advance Notice of Proposed Rulemaking (“ANPRM”) requests data and facility information concerning discharges of PFAS from manufacturers in the Organic Chemicals, Plastics and Synthetic Fibers (“OCPSF”) point source category. EPA intends to use the data to amend OCPSF wastewater discharge requirements to include PFAS compounds.

The ANPRM comes in the wake of a flurry of PFAS-related regulatory actions taken by EPA beginning in 2019. In February, 2019, after numerous stakeholder meetings, EPA issued a PFAS Action Plan, identifying primary challenges facing the regulation of PFAS and set forth planned and ongoing actions by EPA. Challenges identified in the action plan included the need for more robust, validated, and codified sampling and laboratory analytical methods, more toxicity data and exposure information to set proper cleanup levels, and more study of effective treatment and remediation methods. One action item in the PFAS Action Plan was to “identify industrial sources that may warrant further study for potential regulation through Effluent Limitation Guidelines and Standards (“ELG”).” Following issuance of the Action Plan, EPA conducted a PFAS Multi-Industry Study, which gathered a range of information about PFAS manufacturers and formulators, as well as the potential discharges of PFAS from these facilities.

In November, 2020, EPA issued guidance to its regional permit writers, instructing them to find ways to “address” PFAS in wastewater discharges “while the CWA framework for potentially regulating PFAS discharges pursuant to the NPDES program is under development.” Acknowledging there is no regulatory basis for placing numeric PFAS limitations in NPDES Permits yet, this Interim Strategy for PFAS in Federally Issued NPDES Permits suggests permit writers include monitoring requirements in permits of facilities where “PFAS are expected” in wastewater discharge. First, to determine whether PFAS are expected, EPA suggests there is no need for existing data from the facility showing PFAS are actually in the wastewater discharge. Monitoring requirements may be included if data from “similar facilities” show PFAS in wastewater. Second, the guidance suggests these monitoring requirements be drafted such that they only become effective at some future unknown date, when sampling methodologies are approved. Both of these strategies should be troubling to permittees.

The ANPRM is simply EPA’s next step in achieving its goal set in the Action Plan and more clearly articulated in the Interim Strategy. It requests additional information from PFAS manufacturers and formulators and seeks public review and comment on the information and data collected to date. PFAS manufacturers are those facilities that produce PFAS compounds. Formulators include facilities, which are the primary customers of PFAS manufacturers; those using PFAS to produce commercial or consumer goods (e.g. weather-proof caulking) or using PFAS as an intermediary in the production of consumer goods (e.g. grease-proof coating for a pizza box). The ANPRM asks PFAS manufacturers and formulators to provide EPA information including the identity and location of other facilities believed to be PFAS manufacturers or formulators; descriptions of manufacturing processes (process flow diagrams); data on specific compounds produced or used, production volumes, and customer information; identification of waste streams containing PFAS; current wastewater treatment and management practices used; planned facility changes related to PFAS production or use; and information on analytical methods used.

EPA plans to use the information gathered in response to the ANPRM to draft a Notice of Proposed Rulemaking for the OCPSF category. Once EPA establishes a scientific basis for measuring PFAS in wastewater and develops defensible effluent limitations, regulation of PFAS in wastewater permits at all levels will come swiftly. States will use ELGs in establishing state-level effluent limitations, and local publicly owned treatment works (“POTWs”) will incorporate them into sewer use ordinances. In anticipation of this, states and POTWs are actively gathering information related to PFAS compounds from industry with state issued NPDES permits and locally issued pre-treatment permits.

Interested facilities and the public should take part in the process. Comments on the ANPRM may be filed through May 17, 2021.

Recommendations from the PFAS NPDES Regional Coordinators Committee, Interim Strategy for PFAS in Federally Issued NPDES Permits, EPA Memorandum (November 22, 2020)

Clean Water Act Effluent Limitations Guidelines and Standards for the Organic Chemicals, Plastics and Synthetic Fibers Point Source Category, Advanced Notice of Proposed Rulemaking, 86 Fed. Reg. 14560 (March 17, 2021)

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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