EPA Issues Guidance Addressing Discharges of PFAS

In Short  

The Situation: The Environmental Protection Agency's ("EPA") new guidance memorandum to states provides direction on how they can use the National Pollutant Discharge Elimination System ("NPDES") permitting program to address per- and polyfluoroalkyl substances ("PFAS") in waters of the United States.  

The Result: The effect of this guidance is that many states will likely take steps to restrict PFAS at their source, thereby subjecting industry to additional regulation.  

The Outlook: Industry stakeholders should be prepared for additional regulation and carefully evaluate potential sources of PFAS in their supply chains.

On December 5, 2022, EPA issued a new guidance memorandum that outlines how states can monitor for discharges of PFAS and take steps to reduce them. PFAS are synthetic chemicals with wide commercial and industrial applications, including firefighting foams, greaseproof food wrapping, nonstick cookware, water-repellent fabrics, carpets, and textiles. This new guidance aligns wastewater and stormwater NPDES permits and pretreatment program implementation activities with the goals of EPA's PFAS Strategic Roadmap.  

EPA's guidance memorandum provides recommendations for both industrial direct dischargers and publicly owned treatment works ("POTW"). These recommendations encourage states to use the most current sampling and analysis methods in their NPDES programs to identify known or suspected sources of PFAS so that they can take actions under their pretreatment and permitting authorities. These recommendations are discussed in more detail below. 

Recommendations for Applicable Industrial Direct Dischargers  

EPA's PFAS Strategic Roadmap includes a non-exhaustive list of industry categories that are known or suspected to discharge PFAS, including: organic chemicals, plastics and synthetic fibers, metal finishing, and electric and electronic components, among others. For industrial direct dischargers that fall into one of these categories, EPA recommends that states include effluent and wastewater residuals monitoring based on the Clean Water Act ("CWA") wastewater draft analytical method 1633 in NPDES permits. Wastewater monitoring should also include each of the 40 PFAS parameters detectable by draft method 1633 and be conducted at least quarterly. This will ensure that there is adequate data to assess the presence and concentration of PFAS in the discharges. 

The guidance memorandum further recommends certain best management practices ("BMPs") be included in NPDES permits for industrial direct dischargers of PFAS through special condition language, such as: (i) product elimination or substitution when a reasonable alternative to PFAS is available; (ii) minimization of accidental discharges by optimizing operations; and (iii) equipment decontamination or replacement where PFAS products have historically been used to prevent the discharge of legacy or residual PFAS.   

Recommendations for POTW 

EPA's recommendations for POTW apply to all POTW, not just those that receive industrial discharges. The guidance memorandum suggests that effluent, influent, and biosolids monitoring that is similarly based on CWA wastewater draft analytical method 1633 and monitoring of the 40 PFAS parameters set forth in the draft be included in POTW NPDES permits. This monitoring should also be done on a quarterly basis at a minimum.  

Further, EPA recommends that permits to POTW should include requirements to identify and locate all possible industrial users that might be subject to the pretreatment program and identify both the character and volume of pollutants contributed to the POTW by the industrial users. This "inventory" should be updated regularly to ensure that it includes all known or expected industry categories of PFAS. Moreover, permits to POTW should utilize BMPs and pollution prevention to help address PFAS discharges, such as quarterly monitoring of industrial users, the development of local limits in the form of BMPs for industrial users, and other control mechanisms. EPA also recommends that, where appropriate, states may work with their POTW to reduce the amount of PFAS in biosolids by following certain steps that are set forth in EPA's guidance.  

Lastly, EPA encourages state NPDES permitting authorities to provide notification to potentially affected downstream public water systems of any draft permits that contain PFAS-specific monitoring, BMPs, or other conditions.

Three Key Takeaways 

  1. As a result of EPA's guidance, state wastewater permitting authorities may more aggressively seek to identify and regulate users of PFAS, even if such uses are unintentional. This could include, for example, implementing permit terms that would require dischargers to evaluate potential sources of PFAS and eliminate them.
  2. EPA's recommendation that state NPDES permitting authorities provide notification to downstream public water suppliers could create liability risks for PFAS dischargers.
  3. In light of EPA's and states' continued regulatory scrutiny of PFAS, including EPA's recent proposed rules on PFAS TRI Reporting and the designation of certain PFAS as a CERCLA Hazardous Substance, manufacturers should consider evaluating potential sources of PFAS in their operations and supply chain to better understand the potential risk and to develop mitigation strategies. 

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