The Nickel Report

The EPA Office of Water has taken a major step towards further regulation of per- and polyfluoroalkyl substances (PFAS) under the Clean Water Act.  On March 17, it published an advance notice of a proposed rulemaking (ANPRM) that could lead to development of effluent limitations guidelines (ELGs), pretreatment standards, and new source performance standards for PFAS manufacturers, formulators, and possibly other industries now being studied by EPA.  86 Fed. Reg. at 14,560.  These industries include pulp and paper manufacturers, textile and carpet manufacturers, metal finishing companies, and commercial airports.  The ANPRM is open for public comment through May 17.

A new decision curtails agency discretion to approve total maximum daily loads for impaired waterbodies and sets a precedent that may lead to more stringent National Pollution Discharge Elimination System (NPDES) permit limits.

Total maximum daily loads (TMDLs) have been described as “pollution budgets” for impaired waterbodies. A permitting authority developing a TMDL typically considers all known sources of the pollutant at issue (including contributions from point and non-point sources) as well as the relevant characteristics of the waterbody (such as flow rates) and determines how much pollutant the waterbody can receive without exceeding applicable water quality standards. Once a TMDL is adopted for a specific pollutant that is adversely affecting a waterbody, the permitting authority (either a delegated state or EPA) will use the TMDL to derive NPDES permit limits for facilities that are sources of the pollutant.

Everyone can agree that environmental assessments should be based on the best science. The “best” science, however, is an ever-advancing standard. Despite budget uncertainties and other hurdles, EPA scientists often pioneer new methods of assessment capable of detecting smaller and smaller increments of environmental impact. Although it may take years for EPA to develop and demonstrate a new method, stakeholders may benefit from paying attention to the development process and seeking opportunities to participate in it.

In May, EPA issued its 2016 Final Effluent Guidelines (ELG) Program Plan, which is EPA’s first screening step to selection of industries for possible revision or development of technology-based limits on wastewater discharges (i.e., effluent limitations guidelines and standards (ELGs)). 83 Fed. Reg. 19281 (May 2, 2018). EPA releases a new ELG plan every two years, and the process bears watching because it cuts across all industry types (there are 59 industries with final ELGs in place) and provides some perspective on EPA’s assessment of pollutants of concern and emerging technologies to address those pollutants.

In August 2014, residents of Toledo lost the use of tap water for two days because of a toxic algal bloom in the western basin of Lake Erie, which is their water source. In subsequent summers, the lake’s algal blooms have been smaller, but they remain a persistent phenomenon. In fact, the National Oceanic and Atmospheric Administration (NOAA) is predicting a significant cyanobacteria algal bloom in western Lake Erie this summer.

Numerous definitions of “harmful algal blooms” exist, but they generally can be understood as excessive growths of various species of phytoplankton, protists, cyanobacteria, or macro and benthic algae that negatively impact water quality, aquatic ecosystem stability, or animal and human health. The blooms may be toxic or nontoxic. Even nontoxic blooms can have repercussions for drinking water treatment, recreational use of the waterbody, and the overall economy.

A pteropod is not a winged dinosaur. It is a category of marine life that includes sea snails and sea slugs, both of which serve as forage for other marine species. According to the Center for Biological Diversity (CBD), ocean acidification is endangering some pteropods, such as sea snails, by eroding their shells. The sea snail is not the only threatened species—the CBD posits that most marine calcifying organisms (including oysters, clams and coral) are at risk of damage from ocean acidification.