The Environmental Protection Agency (EPA) recently signaled a path forward on its roadmap to address PFAS contamination, something industry, water suppliers, and wastewater treatment operators, to name a few, have been waiting to learn since the agency unveiled the PFAS Roadmap in Oct. 2021.
On Dec. 6, 2022, the EPA provided guidance to states as an update to the Agency’s previous guidance (issued April 28, 2022). The latest guidance reaffirms EPA’s commitments announced previously in its PFAS Roadmap and directs water quality permitting agencies to leverage their authority to issue wastewater discharge permits and reduce PFAS discharges at the source.
EPA’s Office of Water is working on revisions to Effluent Limitation Guidelines and is developing water quality criteria to support technology-based and water quality-based effluent limits for PFAS to be included in the permits all dischargers must obtain.
This guidance, paired with guidance the EPA issued the day before enhancing PFAS disclosure requirements for users of PFAS, directs water quality permitting agencies to require detailed information concerning PFAS in connection with wastewater discharge permit renewals.
The guidance also requires monthly reporting of the 40 PFAS parameters detectable by draft analytical method 1633. This data will be reported in required Discharge Monitoring Reports (DMRs). DMRs are publicly available through freedom of information requests and often serve as the basis for lawsuits alleging violation of regulatory requirements.
EPA urges that wastewater discharge permits include requirements for incorporation of Best Management Practices (BMPs) for discharges of PFAS, and that facilities employ product substitution and PFAS reduction. The guidance specifically targets the need for BMPs to address PFAS-containing firefighting foams in required stormwater permits. PFAS contamination originating from longstanding use of Aqueous Film Forming Foams (AFFF) is a widespread issue, particularly in the vicinity of airports and military bases across the country.
Under the guidance, Publicly Owned Treatment Works (POTWs) will be required to identify and locate all possible Industrial Users (IUs) that might be subject to pretreatment requirements, and to identify the character and volume of pollutants contributed to the POTWs receiving their waste. Industrial Users must monitor quarterly, linking to EPA’s Integrated Compliance Information System (ICIS). BMPs or local limits (where such authority exists by virtue of local law) also will be required of Industrial Users. In the absence of local limits and POTW legal authority to issue IU control mechanisms, EPA is encouraging state pretreatment coordinators to work with POTWs to encourage pollution prevention, product substitution, and good housekeeping practices that make meaningful reductions in PFAS introduced to POTWs.
Finally, EPA also provided guidance for addressing PFAS-contaminated sewage sludge, a significant concern for the wastewater treatment industry and the thousands of U.S. municipalities that operate publicly-owned treatment works (POTWs). The recommendations include effluent, influent, and biosolids monitoring utilizing draft analytical method 1633 until a final 40 CFR Part 136 method is available.
EPA’s guidance concludes with a notation the agency is currently evaluating the potential risk of PFOA and PFOS in biosolids and is supporting studies and activities to evaluate the presence of PFOA and PFOS in biosolids.
It is not inconceivable that EPA will take regulatory action significantly restricting, or even eliminating, the practice of land spreading of biosolids. EPA data reveals that 85% of the nation’s biosolids are either applied to the land or landfilled. It is similarly possible that the common practice of combustion of sewage sludge could be impacted. This will present challenges to the industry, which produces roughly 7 million tons of dry sewage sludge annually in the U.S, 14% of which is combusted.
This guidance does not address concerns raised by many sectors concerning earlier indications that EPA may be preparing to use CERCLA as a vehicle for addressing PFAS contamination remediation. Presumably, as EPA continues to flesh out the direction that it will take in furtherance of the PFAS Roadmap, remediation policy will begin to take shape.
One thing is clear, the PFAS regulatory landscape is changing, demanding continued attention to this dynamic field of developing policy.
If you have any questions about the matters in this Legal Alert, please contact:
Gene Kelly at firstname.lastname@example.org or Kelly Jones Howell at 212-912-3652/ email@example.com, or the Harris Beach attorney with whom you usually work.
This alert does not purport to be a substitute for advice of counsel on specific matters.
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