About the author:
Emily Remmel is regulatory affairs director for the National Association of Clean Water Agencies. Remmel can be reached at [email protected].
Per- and polyfluoroalkyl substances, or PFAS, are perhaps the most perplexing pollutants federal and state legislators and regulatory agencies have had to grapple with in decades. The U.S. EPA Administrator Michael Regan — confirmed on March 10 — is well prepared to tackle this issue with his experience dealing with notable PFAS pollution in the Cape Fear River in North Carolina. As EPA’s new leadership settles in, expect federal PFAS regulatory initiatives to accelerate. For the water sector, it is critical to keep a close eye as developments progress.
Monitoring requirements in municipal wastewater National Pollutant Discharge Elimination System (NPDES) permits are coming. Under the Trump Administration, in November 2020, EPA released an unanticipated memorandum, Interim Strategy for Per- and Polyfluoroalkyl Substances in Federally Issued National Pollutant Discharge Elimination System Permits, which recommends phased-in monitoring and that best management practices be incorporated in federally issued wastewater and storm water permits where “PFAS are expected to be present” (emphasis added).
PFAS compounds are ubiquitous in the environment; therefore, it is likely they can be expected to be found almost everywhere. This could have major implications for NPDES permits based on the EPA recommendations. While these recommendations are not binding regulatory requirements and only legally apply where EPA is the permitting authority, it is likely that many state permit writers will heed these suggestions and provisions.
Analytical accuracy is also a real concern. Namely, there are more than 3,000 known chemical varieties — not to mention the chemical structures have been shown to transform or degrade into different PFAS chemicals as they are transported through different environmental media. Currently, there are no EPA-approved Clean Water Act analytical methods for monitoring PFAS in surface waters, wastewater or biosolids, which is problematic given the attention state regulatory authorities are paying towards setting regulatory limits. Consistent and reproducible analytical methods are necessary to ensure confidence in any subsequent regulatory actions.
Continued scientific research on human health and ecological risk is needed. EPA is currently nearing the end of the problem formulation and scope stage — the first step of a risk assessment — for understanding PFOA and PFOS risks, if any, in biosolids. Sometime this year, EPA will send its risk assessment modeling approach to the Scientific Advisory Board, and once reviewed, EPA will open a formal notice and comment period. Also, it is likely we will see something from EPA evaluating the data availability for Clean Water Act human health criteria in 2021 and similarly for aquatic life criteria in 2022. These scientific processes are obligatory before any regulatory policy determinations are made.
Holding PFAS producers and manufacturers responsible for legacy and ongoing contamination will be critical as well. If PFAS or certain PFAS compounds are designated as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a narrow exemption must also be included for passive receivers, such as municipal water and wastewater utilities and landfills. The clean water community and other receivers are not responsible for creating PFAS concerns yet they face severe unintended consequences of potential liability and clean-up costs if federal or state legislation moves forward without recognizing the dichotomy between PFAS receivers and producers.
CERCLA is a strict, joint and several liability statute that contains certain exclusions for “normal application of fertilizer” and “federally permitted releases.” These exclusions, however, have not been adjudicated in court, and it is unclear whether these exemptions are applicable to permitted receivers like municipal clean water utilities. Attention must be paid to these statutory nuances and remediation responsibility must ultimately rest with PFAS producers and manufacturers.
Needless to say, expect a great deal of PFAS action at the federal level this year and in the years ahead. The municipal clean water community continues its commitment to source mitigation through the industrial pretreatment programs and addressing these chemicals before they enter our systems. But, without a comprehensive campaign, either voluntarily or through the Toxic Substances Control Act, to eliminate PFAS chemicals entirely from our everyday consumer products, we will continue to be in this endless cycle of how to regulate a pervasive, nearly indestructible, synthetic suite of chemicals found at part per trillion concentrations in the environment.