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.

ELGs, pretreatment standards, and new source performance standards are technology-based limits for industrial dischargers that are applied according to industry category.  PFAS manufacturers are regulated through the Organic Chemicals, Plastics and Synthetic Fibers (OCPSF) category, which hasn’t had its limits revised since 1993.  However, EPA is also seeking information on PFAS formulators, described broadly by EPA as users of “raw PFAS feedstock to (a) produce commercial or consumer goods (e.g., weather-proof caulking), or (b) as intermediary products for use in the manufacture of consumer goods (e.g., a grease-proof coating for a pizza box).”  86 Fed. Reg. at 14,561.  Beyond manufacturers and formulators, EPA makes clear that “[o]ther types of entities … could also be regulated.” Id.  And, because PFAS formulators may be subject to a range of existing ELGs developed for specific industries, EPA says its future rulemaking may include revisions to other ELGs in addition to the OCPSF category, or development of a new industrial point source category altogether.   In its recent ELG program planning document, EPA described its ongoing Multi-Industry Detailed Study of industrial PFAS use, which focuses on PFAS manufacturers, pulp and paper manufacturers, textile and carpet manufacturers, metal finishing companies, and commercial airports as industries of interest for potential PFAS discharges.

In order to develop ELGs, pretreatment standards, and new source performance standards, EPA needs data on the presence and concentration of PFAS in industrial wastewaters.  While the Agency acknowledges there is no approved method for analysis of PFAS compounds in wastewater, it is requesting monitoring data and asks that data submittals identify the analytical methods used.  86 Fed. Reg. at 14,566.  EPA specifically requests data about PFAS in process wastewater, cooling water, contaminated stormwater, wastewater from aqueous scrubbers or air pollution control equipment, off-specification products, equipment cleaning wastewater, and spills and leaks from manufacturing or formulating entities.  Id. at 14,565-66.  Given that PFAS appears to be widespread in the environment, facilities using surface waters in their processes may find PFAS in their discharge even though it is not added by on-site manufacturing processes.

In addition to wastewater characterization data, EPA is also seeking information and data—including costs—for potential treatment technologies.  A draft report commissioned by EPA lists 13 technologies as “applicable” to PFAS, including biological treatment, reverse osmosis, ultrafiltration, and ion exchange.  Evaluation of Industrial Wastewater PFAS Treatment Technologies (Sept. 25, 2019).

The Biden Administration is intent on moving quickly to address PFAS through multiple statutes, including the Clean Water Act, the Safe Drinking Water Act, the Toxic Substances Control Act, and CERCLA.  In the case of industrial wastewater regulation, this ANPRM is the first step toward new discharge limits that will set precedent for PFAS removal or reduction through application of advanced wastewater treatment technologies.  For this reason alone, it is worth monitoring.