What’s In Your Permit?
On November 30, 2020, a workgroup within the United States Environmental Protection Agency (EPA) released information about a memorandum to the U.S. EPA Regional Administrators summarizing an Interim Strategy for Per- and Polyfluoroalkyl Substances (PFAS, also known as “forever chemicals”) for sites with federally issued National Pollutant Discharge Elimination System (NPDES) permits for addressing PFAS in wastewater and stormwater permits under the Clean Water Act (CWA). This follows EPA’s Action Plan announced in February 2019, by which EPA has taken several steps to begin regulating a handful of PFAS substances. The Interim Strategy represents a step toward regulating PFAS in point source discharges. Future actions will likely include defining PFAS as a Hazardous Substance under CERCLA.
EPA’s interim NPDES permitting strategy for PFAS provides recommendations from a cross-agency workgroup on an interim approach to include PFAS-related conditions in EPA-issued NPDES permits. The strategy advises EPA permit writers to “consider incorporating permit requirements for monitoring PFAS at facilities where PFAS are expected to be present in point source wastewater discharges,” including municipal separate storm sewer systems and industrial stormwater processing and storage facilities. While the Interim Strategy sets forth recommendations for permit writers in jurisdictions where EPA retains permitting authority (i.e., New Mexico, New Hampshire, Massachusetts, the District of Columbia, and most U.S. territories), and specifically recommends that permit writers include these monitoring requirements, we can expect many states to follow the recommendations.
The memorandum indicates that EPA expects a new multi-lab validated wastewater analytical method to detect PFAS in wastewater, surface water, and groundwater to be finalized in 2021 and available on a phased-in schedule. PFAS that meet the criteria identified by this new detection method are those which could be considered for monitoring in the future. The draft analytical detection method (8327) is available here.
Whether we like it or not, forever chemicals are here to stay, and drastic and profound regulatory efforts will likely be used to control them.
If you have questions regarding this article, PFAS, CWA permitting, or environmental compliance, contact Michael Blumenthal or any member of McGlinchey’s Environmental Practice Group.