PFAS Update: PFAS Regulations Under the NPDES Program | Bryan Cave Leighton Paisner

To date, companies have had to contend with only a handful of state laws and regulations limiting the concentration of per- and polyfluoroalkyl substances (“PFAS”) in industrial wastewater discharges.

However, on April 28, 2022, the EPA released a guidance note explaining that “the EPA will use the NPDES program to restrict releases of PFAS to water bodies. For federally issued permits, EPA will include requirements to monitor PFAS, include requirements to use best management practices such as product substitution and good housekeeping practices, and establish practices to address fire-fighting foams containing PFAS in stormwater. The new memorandum replaces a November 2020 EPA Interim Memorandum addressing similar issues, and it reaffirms EPA’s commitment to regulating PFAS compounds as outlined in the PFAS Strategic Roadmap.

This means that companies holding a National Pollutant Discharge Elimination System (“NPDES”) permit must understand the new guidelines and assess whether PFAS releases to wastewater are relevant to their business.

I. What does the EPA actually require?

The April 28, 2022 memorandum includes three important requirements for all NPDES permits issued by the EPA for facilities where PFAS substances are expected or likely to be present in their release:

  • Effluent monitoring. Permits should include a requirement that facilities use the analytical method project 1633 to test the 40 PFAS compounds detectable by this method.
  • Monitoring frequency. Sampling should be done quarterly, and all PFAS monitoring data should be reported in release monitoring reports.
  • Best Management Practices for PFAS. Facilities are required to implement Best Management Practices (“BMPs”) for PFAS, which may include:
    • Elimination or substitution of product when a reasonable alternative to the use of PFAS is available in the industrial process;
    • Minimization of accidental releases by optimizing operations and good maintenance practices;
    • Decontamination or replacement of equipment where PFAS products have been used in the past to prevent the release of old PFAS following the implementation of product substitution; and
    • Preparation of an annual report listing potential sources of PFAS, implementation of PFAS source reduction, source monitoring results, and effluent results for the previous year.

There are also additional BMPs to address firefighting foams containing PFAS for stormwater permits, including prohibiting the use of AFFF in stormwater permits other than for firefighting proper say.

II. Which companies do these changes apply to?

The memorandum provides guidance for EPA-issued NPDES permits for industrial users where the EPA is the pretreatment controlling authority. The EPA issues all NPDES permits in the following cases states and/or regions:

The other remaining states have been authorized by the EPA to issue their own permits and are not bound by the guidelines. In particular, some states such as Missouri have developed guidelines on how to address PFAS substances in their NPDES permits, and some states may choose to adopt the new EPA guidelines.

Additionally, the guidelines apply to facilities where PFAS is suspected in releases. According EPA Strategic Roadmapthe following industries may release PFAS substances:

  • Airports;
  • Electrical and electronic components;
  • electroplating;
  • Landfills;
  • Leather tanning and finishing;
  • Metal finishing;
  • Organic Chemicals, Plastics and Synthetic Fibers Industry Category (“OCPSF”);
  • paint formulation;
  • Molding and forming of plastics;
  • Pulp, paper and cardboard industries; and
  • Textile factories.

The April 28, 2022 memorandum claims that this may not be an exhaustive list. For example, public sector (“POTW”) treatment facilities may receive PFAS waste from many entities. Additionally, some sanitation sites, chemical plants, and military bases may also be included.

You should assess how the conditions of your NPDES permit may change as a result of guidance in the following three scenarios:

  1. Your wastewater discharge is regulated by an NPDES permit issued by the EPA;
  2. If you are in one of the industries listed above; Where
  3. If you suspect that your effluent may contain PFAS substances.

III. Conclusion

The guidelines give EPA permit writers broad authority over the industrial use of PFAS. This will allow the EPA to require companies to perform alternative testing, decontaminate or replace treatment equipment, and regularly report the concentration of PFAS in their effluent. These requirements have implications for compliance and capital costs, and regular reporting of PFAS concentrations in emissions can be a factor in future contributory and tort litigation.

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