EPA Expands Efforts to Address PFAS Contamination in Water Bodies – Water

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The Environmental Protection Agency’s (EPA) efforts to address contamination with per- and polyfluoroalkyl substances (PFAS) continue to advance rapidly. Although federal efforts initially focused on PFAS in drinking water, the EPA has recently begun to address PFAS in a wider variety of sources, including wastewater and stormwater. In April of this year, the EPA introduced its first-ever Clean Water Act enforcement action address the discharge of PFAS into wastewater and stormwater. We can expect more enforcement actions of this nature to come, both at the state and federal levels.

As detailed in our previous blog postSome of the EPA’s recent regulatory efforts include a proposal to classify PFAS as a hazardous substance under the Comprehensive Environmental Response, Compensation and Liability Act and a proposed national primary drinking water regulation under the Safe Drinking Water Act. The April 2023 consent order marks the EPA’s first attempt to address PFAS through its enforcement authority under the Clean Water Act.

Due to the properties that make PFAS ubiquitous in many consumer products—including its solubility in water and resistance to degradation—it is also easily transported through sewage and stormwater. Wastewater discharges from facilities known or suspected to emit PFAS are often the source of PFAS contamination of water bodies. And when it rains, stormwater can easily pick up and carry PFAS from structures on and land surfaces of industrial sites, landfills, wastewater treatment plants, and other facilities where PFAS are found.

EPA and states’ authority to regulate PFAS in wastewater and stormwater is derived from the Clean Water Act (CWA), which prohibits the discharge of pollutants into navigable waters of the United States without a permit. The discharge is permitted through the National Pollutant Discharge Elimination System (NPDES) program, which regulates wastewater and stormwater. The CWA authorizes states to implement the NPDES program, and 47 states currently do so.

The EPA said it is working to develop effluent limitations for PFAS based on technology and water quality in NPDES permits, and in the meantime has taken steps to promote reductions in PFAS discharges under existing programs. In April 2022, the EPA issued a memorandum details how it will address PFAS discharges in EPA-issued NPDES permits by including permit requirements for PFAS monitoring and use of best management practices such as product substitution and proper maintenance, as well as establishing procedures to address firefighting plumes containing PFAS in stormwater . In December 2022, EPA updated this guidance and issued a memorandum containing recommendations for addressing PFAS discharges in state-issued NPDES permits. The memorandum recommends a number of provisions that states should include when issuing or modifying NPDES permits, including, for example, that permit monitoring requirements include PFAS parameters and that stormwater permits include best management practices for water film-based foam solutions used for firefighting .

States are following suit and have also begun taking steps to address the problem of PFAS in wastewater and stormwater. Like us before described, New York State issued water quality guidelines for PFOA, PFOS, and 1,4-dioxane to be incorporated into industrial discharge requirements requiring a State Pollutant Discharge Elimination System (SPDES) permit under the CWA. New York is also actively working to draft draft guidelines for dealing with PFAS discharged through Publicly Owned Treatment Works (POTWs).

This past April, the EPA first used its enforcement powers under the CWA to address PFAS in stormwater and wastewater by issuing an administrative compliance order to Chemours for PFAS-related NPDES permit violations. Chemours, which uses PFAS in its manufacturing processes, discharges industrial process water and stormwater into the Ohio River and its tributaries under a 2018 NPDES permit issued by the West Virginia Department of Environmental Protection. That permit imposed discharge restrictions on two specific types of PFAS: perfluorooctanoic acid (PFOA) and dimer HFPO acid (GenX). The permit also required monitoring of these and other pollutants. In its April 2023 Administrative regulations on consent (Order), EPA alleged that the facility exceeded permitted effluent limits for PFOA and GenX on various dates from September 2018 to March 2023 and that Chemours failed to properly operate and maintain facilities and systems required to comply with the permit. The regulation requires Chemours to implement an approved sampling plan for PFAS analysis and to study the presence of PFAS in storm water and wastewater.

We can expect to see more efforts to address PFAS in wastewater and stormwater in the future, both in future state and federal enforcement actions and through the development of technology-based and water quality effluent limitations for PFAS in NPDES permits. Facilities obtaining or modifying their NPDES permits should be aware that PFAS effluent limitations and monitoring requirements may be part of their NPDES permit.

Originally published on July 28, 2023

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