By Meghan Quinn and Darrin Gambelin
On April 28, 2022 the U.S. Environmental Protection Agency (EPA) announced three actions related to the regulation of the per- and polyfluoroalkyl substances (PFAS) through the federal Clean Water Act (CWA), 33 U.S.C. § 1251 et seq. PFAS are a large group of man-made, persistent, and bio-accumulative chemicals that are used in consumer products and various industrial processes. To address the presence of these chemicals, the EPA has now: 1) issued a new draft testing method intended to detect PFAS in water; 2) adopted a policy to address PFAS through the CWA National Pollutant Discharge Elimination System (NPDES) program (33 U.S.C. § 1342); and 3) published national ambient water quality criteria, which is intended to protect aquatic life.
PFAS Testing Method
Since the adoption of the CWA, the EPA has developed and adopted a number of laboratory analytical methods for the analysis of the chemical, physical, and biological components of wastewater and other environmental samples required by the CWA. Once an analytical method is published in the code of federal regulations, that method is generally considered an “approved method” for use in evaluating and assessing NPDES permit compliance and enforcement actions. Currently, there are no EPA-approved methods for analyzing PFAS, leaving the regulated community to use “any suitable method” for analysis until a method has been developed and officially adopted by EPA.
Because the chemicals generally referred to as “PFAS” include numerous chemical compounds of varying compositions, the development of an analytical method for comprehensive PFAS analysis has been stymied. However, the EPA’s Office of Water collaborated with the Department of Defense (DOD), to develop draft Method 1633, which can detect 40 different PFAS compounds in wastewater, surface water, groundwater, soil, biosolids, sediment, landfill leachate, and fish tissue. Draft Method 1633 is ultimately intended for use in evaluating compliance with NPDES permit terms; however, use of this method is not yet required for CWA compliance monitoring, as the method is not yet final. Nonetheless, EPA is recommending use of draft Method 1633 while the agency works to adopt the method through the formal rulemaking process. Once formally adopted, use of Method 1633 will be required for compliance where PFAS sampling and analysis is necessary.
Inclusion of PFAS Monitoring in NPDES Permits
On April 28, 2022, EPA also released a memo, which details how the agency will address discharges of PFAS compounds through EPA-issued NPDES permits. EPA anticipates NPDES permit terms pertinent to PFAS will include monitoring requirements and PFAS-specific best management practice (BMP) implementation requirements. Going forward, PFAS monitoring will generally be required for those industries that are known to discharge PFAS in association with their industrial processes, such as metal finishing, landfills, and airports, among others. Publicly owned treatment works (POTWs) may also be required to monitor for PFAS compounds, given that POTWs typically receive wastewater from a variety of PFAS-discharging entities, including households, given the prevalence of PFAS in consumer products. Where PFAS monitoring is required by an NPDES permit, EPA is suggesting use of draft Method 1633 for compound analysis. Moreover, if PFAS monitoring is required, such monitoring will pertain to all 40 compounds that can be detected by draft Method 1633, and will occur on at least a quarterly basis. The memo details suggested NPDES permit terms for each type of PFAS-discharging entity, as well as industry-specific recommended BMPs, which range from product substitutions to requiring the immediate clean-up of aqueous firefighting foams.
National Water Quality Criteria
On May 3, 2022, EPA published in the federal register draft national recommended aquatic life criteria for two PFAS compounds: 1) Perfluorooctane Sulfonate (PFOS); and 2) Perfluorooctanoic Acid (PFOA). (87 Fed. Reg. 26199.) Water Quality Criteria (referred to as “Water Quality Objectives” in California) are used to protect receiving water quality and aquatic organisms, and are typically incorporated into NPDES permits for that purpose.
Each draft criteria includes both acute and chronic criteria for fresh water, as well as a tissue-based concentration to protect aquatic life from potential bioaccumulation. Once the criteria are made final, states and tribes have the authority to adopt these criteria for use as water quality standards. Comments on the draft are due June 2, 2022.
Conclusion and Implications
Together, these three actions represent significant progress towards fulfilling the agency’s commitments under the Biden administration’s Plan to Combat PFAS Pollution (Biden PFAS Plan), which was initially adopted on October 18, 2021 and provided steps that eight federal agencies, including EPA should take over the coming years to accelerate federal efforts at combating PFAS pollution. Moreover, the three recent EPA actions further the Office of Water’s responsibilities under the EPA’s PFAS Strategic Roadmap, which was adopted concurrently with the Biden PFAS Plan. Once made final, the three actions together will have the effect of regulating PFAS nationwide under the Clean Water Act.
