PFAS – A “Four-Letter Word” for Water and Wastewater Utilities?

by Sara R. Thornton

If you follow developments in environmental regulation, you know a day rarely passes without some news story on the regulation of per- and poly-fluoroalkyl substances—or generally known as PFAS. To address growing concerns for PFAS contamination, the Environmental Protection Agency (“EPA”) is actively implementing a strategic roadmap for PFAS that includes actions to address PFAS in water, wastewater, and biosolids. Water and wastewater utilities should actively track and weigh in on EPA’s actions on PFAS because failure to do so may have utilities considering PFAS a “four-letter word” once EPA implements these actions.

PFAS is a term that represents thousands of man-made chemicals that are widely used and highly persistent in the environment. This wide use and persistence is evidenced through scientists finding PFAS in samples of human blood and in water, air, fish, and soil across the nation. Scientific studies have linked PFAS exposure to certain cancers, thyroid diseases, immune suppression and other health effects. Significant concerns regarding PFAS contamination in water supplies, and potential public health effects, are driving new regulatory requirements by EPA that will affect water, wastewater, and possibly biosolids management.

PFAS Strategic Roadmap

On October 18, 2021, EPA Administrator Michael S. Regan announced EPA’s PFAS Strategic Roadmap (the “Roadmap”). This Roadmap lays out EPA’s agency-wide approach to addressing PFAS and establishes timelines for EPA to undertake specific actions and implement new policies to protect public health and the environment, while holding responsible polluters accountable. The Roadmap sets forth the following overarching goals:

In addition to establishing overarching goals and objectives for management of PFAS, the Roadmap details specific actions EPA intends to take, through its program offices, from 2021 through 2024. Of particular concern for water and wastewater utilities are the specific actions being implemented by the EPA Office of Water. Highlighted below are a few actions that are likely to significantly affect water and wastewater utilities.

Drinking Water

On February 22, 2021, EPA reproposed the Fifth Unregulated Contaminant Monitoring Rule (“UCMR 5”) to collect new data on PFAS in drinking water and the agency reissued final regulatory determinations for perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”) under the Safe Drinking Water Act (“SDWA”).

EPA published UCMR 5 on December 27, 2021, which requires sample collection for 29 PFAS between 2023 and 2025 using analytical methods developed by EPA and consensus organizations. EPA expects that this sampling collection will provide scientifically valid data on the national occurrence of PFAS contaminants in drinking water and provide new data to improve understanding of the frequency of these 29 PFAS found in drinking water systems and at what levels. If UCMR 5 is applicable to a water utility, such utility should fully understand the new sampling requirements for these 29 PFAS contaminants.

With the final Regulatory Determinations for PFOA and PFOS, EPA will move forward to implement the national primary drinking water regulation (“NPDWR”) development process for these two PFAS. The Agency is now developing a proposed NPDWR for these chemicals. As EPA undertakes this action, the agency is also evaluating additional PFAS and considering regulatory actions to address groups of PFAS. The PFAS NPDWR is expected for publication in Fall 2022. EPA anticipates issuing a final regulation in Fall 2023 after considering public comments on the proposal.

Water utilities should actively participate in this PFAS NPDWR rulemaking through participation in stakeholder meetings and submission of public comments to ensure that these regulations are supported by robust toxicological information that clearly defines safe, and unsafe, exposure levels to PFAS in drinking water. Once EPA establishes the NPDWR for PFOA and PFOS, water utilities should seek, and EPA should provide, immediate assistance for communicating monitoring and compliance with this regulation to the public.

Wastewater

As part of the Roadmap, the EPA Office of Water is also pursuing actions to address PFAS contamination from discharges of wastewater, although these actions are not as far along as PFAS drinking water actions.

EPA has undertaken a multi-industry study on PFAS to understand the extent and nature of PFAS discharges. EPA expects in 2022, and on an ongoing basis, to proactively restrict PFAS discharges from industries through a multi-faceted Effluent Limitations Guidelines (“ELGs”) program. ELGs establish national technology-based limits for specified pollutants—in this case, PFAS substances—in wastewater discharges into waters of the U.S. and into municipal wastewater treatment facilities.

In Winter 2022, EPA anticipates proactively using existing National Pollutant Discharge Elimination System (“NPDES”) authorities to reduce discharges of PFAS at the source and to obtain more comprehensive information through monitoring on PFAS sources and quantities discharged from PFAS sources. EPA will seek to leverage federally-issued NPDES permits to reduce PFAS discharges and to issue new guidance to state permitting authorities, like the Texas Commission on Environmental Quality, to address PFAS in state-issued NPDES permits, like Texas Pollutant Discharge Elimination System (“TPDES”) permits. This guidance will recommend that TCEQ, and other state authorities, include permit monitoring requirements for PFAS using EPA’s recently published analytical method 1633 that covers 40 PFAS substances at facilities where PFAS are expected to be present in wastewater and stormwater discharges. EPA also expects to develop final recommended ambient water quality criteria for PFAS for aquatic life in Winter 2022 and human health in Fall 2024. This will assist Tribes and states in developing water quality standards to protect and restore waters, issue discharge permits to control PFAS discharges, and assess cumulative impacts of PFAS pollution on communities.

Wastewater utilities should fully participate in available stakeholder processes on the development of PFAS regulations affecting wastewater. During stakeholder participation, utilities should strongly recommend that EPA provide practicable recommendations to state agencies regarding where PFAS is suspected and monitoring should occur. Additionally, since low levels of PFAS likely occur in many large municipal wastewater discharges, wastewater utilities should also request that EPA provide guidance regarding how to communicate PFAS detections to the public.

Biosolids

EPA is undertaking a risk assessment for PFOA and PFOS in biosolids, also known as sewage sludge, from wastewater treatment facilities that can sometimes contain PFAS. The risk assessment is expected to be finalized in Winter 2024 and will serve as the basis for determining whether regulation of PFOA and PFOS in biosolids is necessary and appropriate.

If EPA establishes regulatory levels for PFAS in biosolids, utilities should request, and EPA should provide, guidance for how to communicate lower levels of PFAS to agricultural users of biosolids and the public.

Conclusion

Through the PFAS Strategic Plan, EPA is actively pursuing actions to address growing concerns regarding PFAS contamination. These actions will unquestionably affect utilities’ management of water, wastewater, and possibly biosolids, particularly from the increased costs for sampling and compliance with new PFAS regulatory requirements. Utilities should pursue every effort to participate in EPA PFAS rulemakings to ensure regulations are based on nationally supported research and establish risk-based standards for PFAS. If you would like to avoid PFAS becoming a “four-letter word,” feel free to reach out to me for assistance in tracking EPA PFAS regulatory actions.

Sara Thornton is a Principal in the Firm’s Water Practice Group. Sara assists clients with various water supply and water quality permitting, compliance, and enforcement issues and has particular expertise in wastewater permitting, Clean Water Act Section 404 permitting, TCEQ enforcement, and compliance with the Endangered Species Act and the National Environmental Policy Act. If you would like additional information or have questions about this article, please contact Sara at 512.322.5876 or sthornton@lglawfirm.com.