Recently, the U.S. Environmental Protection Agency (EPA) took a preliminary step toward requiring limits on some National Pollutant Discharge Elimination System (NPDES) discharges of per- and polyfluoroalkyl substances (PFAS) into surface water. On March 17, EPA issued an advance notice of proposed rulemaking pursuant to the Clean Water Act (CWA), which seeks public comment on data EPA has collected about certain PFAS discharges to surface water and requests additional information about businesses that make or use these substances (the ANPRM). The public has until May 17, 2021, to submit comments.
State and federal policymakers have turned their attention to PFAS in recent years because these substances — found in a broad range of commercial and consumer products such as weather-proof caulking and anti-grease pizza box coating — appear not to break down through natural processes and may cause harm to humans with accumulated exposure. In 2019, EPA adopted a PFAS Action Plan, which aimed to coordinate and prioritize action across the programs that EPA administers. While the Action Plan contemplates the development of technology-based discharge limits, known as effluent limitations guidelines or ELGs, as an area for further study and review, they were not among the Action Plan’s immediate priorities, which included expanding how companies report their use of PFAS and determining whether drinking water standards for PFAS are necessary.
Industries Targeted by EPA’s Proposed Rulemaking
The ANPRM focuses its attention on PFAS manufacturers and PFAS formulators, which both are subject to the Effluent Limitations Guideline for Organic Chemical, Plastics, and Synthetic Fibers. While PFAS manufacturers are a discrete, identifiable group, EPA’s understanding of which entities are PFAS formulators is more tenuous. The ANPRM posits that several entities EPA previously believed to be “likely” PFAS formulators may not in fact be formulators. (EPA defines formulators as businesses that use PFAS to make either end-user goods or an intermediary product for further manufacture.) Data relating to wastewater discharges of PFAS from these two types of entities is available for the public’s review and comment.
Although the ANPRM is targeted to relatively narrow industries and makes clear that EPA is at an early information gathering stage, even a limited rulemaking could prove to be important to aid permitting authorities as they further consider how to best address PFAS in future NPDES permits for other industries.
Information that EPA is Soliciting in the Public Comment Period
In addition to inviting public comment on the data it has collected, EPA is also soliciting information about the identity of PFAS manufacturers, the types of PFAS compounds they produce and resulting wastewater streams, descriptions of treatment, management or off-site disposal practices for PFAS-containing wastewater, planned manufacturing process changes that would impact the amount of PFAS in wastewater, analytical methodologies to monitor wastewater for PFAS, and studies on human health and environmental impacts from the PFAS manufacturing process. EPA is asking the public for similar information about PFAS formulators but also seeks formulators’ industrial classification designations, the various effluent limitations guidelines to which they are subject, whether they import PFAS from abroad, and whether their facilities currently have PFAS monitoring requirements.
Other Agency Actions Regarding PFAS and the CWA
Prior to the ANPRM, EPA issued interim guidance in late 2020 recommending that NPDES permitting authorities consider PFAS monitoring and best management practices provisions while the full Action Plan is being implemented. Various states have followed the approach of the interim guidance by adding PFAS monitoring requirements, but others are taking the further step of including PFAS effluent limits.
The proposed rulemaking only addresses revisions to the Effluent Limitations Guideline for the Organic Chemicals, Plastics, and Synthetic Fibers point source category, but the prospect of broader, federal standards relating to PFAS discharges to surface waters may provide valuable guidance for permitting authorities in other contexts. The attorneys in Schiff Hardin’s environmental law practice group represent businesses from across industries in both Clean Water Act and state water law rulemaking proceedings and are equipped to help businesses address all their PFAS regulatory or compliance issues. We will continue to monitor PFAS/CWA developments.