EPA delays setting PFAS effluent limitations, asks states to fill the temporary gap

Back in October 2021, the US Environmental Protection Agency’s (EPA) PFAS Strategic Roadmap set an ambitious agenda for regulating PFAS throughout the environmental law realm, but bureaucratic realities are setting in.

EPA has now pushed back by several months the target dates for its list of long-term actions – a component of the Fall 2022 Unified Agenda – which aim to update PFAS technology-based effluent limitation guidelines (ELGs) for multiple sectors pursuant to the Clean Water Act.

This delay is prolonging uncertainty and inconsistent applications of PFAS discharge reduction requirements for regulated industries nationwide.

As EPA buys time to establish and revise PFAS ELGs, it has offered guidance to states – and regional EPA offices in states where EPA directly manages NPDES permitting – regarding steps permitting authorities can utilize under existing authorities to reduce PFAS discharges to water and collect important data regarding PFAS discharges to inform future regulations.

Updated PFAS ELG timeline

ELGs are national wastewater discharge standards, developed by EPA, which serve as key metrics and standards in state- and EPA regional-issued National Pollutant Discharge Elimination System (NPDES) and National Pretreatment Program permits. Originally, EPA’s Strategic Roadmap contemplated proposing rulemakings for updated PFAS ELGs for the Organic Chemicals, Plastics, and Synthetic Fibers (OCPSF) category in Summer 2023, and for the Metal Finishing Category – particularly regarding PFAS in wastewater from chromium electroplating facilities – in Summer 2024.

EPA now anticipates proposing updated PFAS ELGs for the OCPSF category in May 2024 and for the Metal Finishing category in December 2024 – significant delays for these highly anticipated rules.

EPA first announced its intention to propose these ELG rulemakings back in September 2021 via its Preliminary Effluent Guidelines Program Plan 15. The Guidelines also detailed the Agency’s plan for studying PFAS in wastewater discharges from landfills, textile, and carpet manufacturers, as well as outlined EPA’s progress in its ongoing Multi-Industry PFAS point source category study.

EPA’s delay in establishing PFAS ELGs coincides with its ongoing effort to finalize a laboratory analytical method for testing for 40 different PFAS substances in eight different environmental media (wastewater, surface water, groundwater, soil, biosolids, sediment, landfill leachate, and fish tissue). The Agency most recently released its third draft of PFAS testing Method 1633 and anticipates releasing at least one additional draft before finalizing the method sometime in 2023. Completion of Method 1633 is expected to facilitate a more efficient ELG establishment process for EPA while effectuating more certainty for NPDES and Pretreatment Program permit holders regarding prescribed PFAS monitoring expectations and requirements.

States are tasked with filling in during EPA’s delay

In a December 5, 2022 memo, EPA recommended the following initiatives for NPDES and Pretreatment Program permitting authorities to regulate PFAS discharges under existing law:

• Permit limits: EPA has urged permitting authorities to establish technology-based effluent limits (TBELs), water quality-based effluent limits (WQBELs) derived from state water quality standards, and where necessary and applicable, water quality narrative criteria to limit permittees’ PFAS discharges where there are no applicable ELGs.
• Enhanced PFAS effluent and wastewater residuals monitoring: EPA recommends that permitters incorporate the draft Method 1633 analytical testing method into permits for monitoring the 40 detectable PFAS parameters on a quarterly basis at minimum. EPA further recognized the draft Adsorbable Organic Fluorine wastewater Method 1621 as an analytical method that can be utilized in conjunction with Method 1633 where appropriate.
• Best Management Practices (BMPs) for PFAS discharges: NPDES permits may incorporate BMPs to achieve effluent limitations and standards, as well as prevent legacy PFAS contamination. Recommended BMPs include product elimination or substitution where alternatives to PFAS are available, optimizing operations and housekeeping to reduce accidental discharges, and equipment decontamination and/or replacement where PFAS has been historically used.
• BMPs for stormwater permits to address firefighting foam usage: EPA recommends that NPDES stormwater permits incorporate BMPs to address Aqueous Film Forming Foam (AFFF), including prohibiting AFFF usage other than for actual firefighting, eliminating PFOS- and PFOA-containing foams, and requiring immediate cleanup in all AFFF usage scenarios to prevent discharges via storm sewer systems.
• Coordination with public water systems (PWS): Where permitters prescribe PFAS limits, monitoring, BMPs, or other conditions, EPA recommends that they notify potentially affected downstream PWS of draft permits to establish a secondary layer of oversight of those discharges and their potential impacts on PWS intakes.
• Special recommendations for publicly owned treatment works (POTWs): EPA recommends that POTWs utilize draft Method 1633 to monitor PFAS effluent, influent, and biosolids. EPA also recommends that POTW permits require POTWs to identify and locate all possible Industrial Users (IUs) that may be subject to the pretreatment program and include in IU Inventory updates all IUs expected or suspected of PFAS discharges. EPA further recommends that POTWs update IU permits to require quarterly PFAS monitoring, develop IU BMPs or local limits, and work with state pretreatment coordinators to facilitate pollution prevention, product substitutions, and housekeeping practices to reduce PFSA introduced to POTWs.

EPA has lauded certain states, among them Michigan and North Carolina, for utilizing their NPDES programs to reduce PFAS discharges, partnering with POTWs to monitor PFAS, and identifying upstream sources, as well as establishing facility-specific TBELs for industrial PFAS dischargers. By all accounts, it appears that EPA is looking to have other states follow suit until the Agency can propose and finalize new ELGs.

Not if, but when

Notwithstanding EPA’s ELG regulatory delays, it is a matter of when, and not if, EPA finalizes PFAS ELGs and related PFAS regulations under the Clean Water Act, along with numerous other PFAS regulations contemplated in the Strategic Roadmap. DLA Piper’s Environmental Team evaluates the latest PFAS policy updates in real-time, and offers cutting-edge, creative solutions and strategies for navigating the evolving PFAS regulatory landscape.

Please reach out to the authors with any questions.