States Begin To Regulate PFAS In Water Discharges

Fox Rothschild LLP

Fox Rothschild LLP

According to ITRC, 13 states (Alaska, California, Connecticut, Delaware, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, North Carolina, Ohio, Rhode Island, and Vermont) regulate PFAS in drinking water through an MCL, screening level and/or action level. Some states, including New Jersey and Massachusetts, are now regulating PFAS in water discharges. Regulation of water discharges containing PFAS presents challenges due to the ubiquitous nature of the chemicals and the extremely low regulatory standards that apply to PFAS. While these new monitoring requirements will provide additional data on the presence of PFAS, the data may not shed much light on the source of the PFAS since the PFAS can be present in intake water and/or storm water that enters the site holding the discharge permit. Under the New Jersey program, the permittee is responsible to find the source of the PFAS, even if it is an off-site source, and take measures to prevent the water containing PFAS from entering its discharge.

The Massachusetts Department of Environmental Protection (“MassDEP”) is now including a PFAS monitoring requirement in its water discharge permits. The provision requires the permittee to submit an evaluation of whether it uses any products containing PFAS and whether use of those products can be reduced or eliminated. It also requires that within six months after publication of an EPA-approved method for sampling wastewater, or two years from the effective date of the permit, whichever is earlier, the permittee must monitor for six PFAS compounds (PFHxS, PFHpA, PFNA, PFOS, PFOA and PFDA). After one year of monitoring, if four consecutive samples are reported as non-detect for all six PFAS compounds, then the permittee may request to discontinue PFAS monitoring. This condition was included in the recent draft permits for the Shire Human Genetic Therapies Cambridge facility, the Town of Athol Wastewater Treatment Plant, the Harvard University Blackstone Steam Plant and the Genzyme Corporation Allston facility.

New Jersey has gone a step further and is requiring facilities with discharge to groundwater permits that are likely to have PFNA, PFOA and/or PFOS in the discharge to both monitor and treat the discharge if the PFAS are found present above the New Jersey groundwater quality standards. As noted in our prior article, the New Jersey ground water quality standard is 14 ppt for PFOA and 13 ppt for PFOS and PFNA. In its response to comments, NJDEP stated that if in the course of the required monitoring, “PFNA, PFOA, and/or PFOS are detected above the New Jersey ground water quality standards, the NJPDES-DGW permit will require an investigation of the source and removal (if possible) from the waste stream.” (NJDEP response to comment 225.) The requirement to investigate and address PFAS sources extends to off-site sources. NJDEP advised that if off-site sources “like precipitation, contain PFNA, PFOA and/or PFOS and the storm water is directed to a regulated discharge to groundwater unit… the facility must comply with the Department’s groundwater quality standards prior to discharge, by the property line or sensitive receptor.” (NJDEP response to comment 223.) NJDEP recommends “physically locating and removing contaminated material from the site, implementation of storm water best management practices, and/or implementing drainage control measures to direct storm water away from affected areas until those sources can be removed. If it is determined the source is from off-site, the facility may need to update its drainage control plan to eliminate run-on from other properties or take other measures.” (NJDEP response to comment 32.)

Due to the ubiquitous nature of PFAS in the environment and commercial and industrial processes and products, the implementation of these new regulatory schemes will prove interesting.

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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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