By Jay Landers
In mid-October, the U.S. Environmental Protection Agency released its game plan for addressing the growing problem of contamination associated with the class of compounds known as perfluoroalkyl and polyfluoroalkyl substances. The substances comprise a group of thousands of human-made chemicals used in industrial processes, firefighting activities, and consumer products such as makeup, fabrics, food packaging, stain repellents, and nonstick coatings on cookware. The widely used, long-lasting chemicals have been found at low levels in the environment, particularly in groundwater supplies, raising fears that the compounds may pose a threat to human health and the environment.
On Oct. 18, the EPA released its PFAS Strategic Roadmap focusing on three guiding strategies:
- Increasing research investments.
- Leveraging authorities to take action to restrict PFAS chemicals from being released into the environment.
- Accelerating PFAS contamination cleanup.
“For far too long, families across America — especially those in underserved communities — have suffered from PFAS in their water, their air, or in the land their children play on,” said Michael Regan, the EPA’s administrator, in an Oct. 18 news release about the report.
“This comprehensive, national PFAS strategy will deliver protections to people who are hurting by advancing bold and concrete actions that address the full life cycle of these chemicals,” Regan said.
Drinking water regulations
Many of the action items listed in the report pertain to either the drinking water or wastewater sectors. Chief among the former is the EPA’s ongoing effort to establish a national primary drinking water regulation for two PFAS variants known as perfluorooctanoic acid and sulfonic acid. Through such regulations, the agency sets legal limits for a given contaminant in drinking water and determines schedules and methods by which water providers must test for the contaminant. To date, no PFAS have been subject to national drinking water regulations.
In March, the EPA published a rule in the Federal Register announcing its intention to regulate PFOA and PFOS in drinking water. In its recent road map report, the agency indicates that it expects to issue a proposed rule by fall 2022 and a final rule by fall 2023.
The time frames represent a more aggressive pace compared with previous pronouncements from the EPA, says Steve Via, the director of federal relations for the American Water Works Association. The EPA has “established a more rapid schedule than everybody had been thinking about beforehand,” Via says. “They’re speeding up the process a little bit.” Essentially, the agency is aiming to issue the proposed rule two to three months earlier than planned and the final rule six to nine months early, he notes.
Even with the agency’s expedited schedule, some members of Congress are unhappy with the pace of progress in regulating PFOA and PFOS in drinking water. “The length of time that this is going to take is very frustrating to me,” said Sen. Shelley Capito, R-W.Va., the ranking member of the Senate Committee on Environment and Public Works, during an Oct. 20 hearing of the committee on the federal response to PFAS in the environment.
Capito asked Radhika Fox, the assistant administrator of the EPA’s Office of Water and the sole witness at the hearing, why it was going to take so long. In response, Fox blamed the delay on the Trump administration. “I share your frustration,” Fox said. “We should have had a drinking water standard for PFOA and PFOS years ago.”
The EPA is “trying to make up for lost time in moving forward with this designation,” Fox said. She pledged to Capito that the agency would act as swiftly as possible while still adhering to the processes required by the Safe Drinking Water Act. “We are moving with all deliberate speed, but we want to get something that’s right, that’s durable, and that’s grounded in science,” Fox said.
In a move that could have significant financial ramifications for the water sector, the EPA pledged in the report to finalize by summer 2023 its efforts to designate PFOA and perfluorooctane sulfonate, or PFOS, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, which is more commonly known as the Superfund program.
“Such designations would require facilities across the country to report on PFOA and PFOS releases that meet or exceed the reportable quantity assigned to these substances,” according to the report. “(The) EPA or other agencies could also seek cost recovery or contributions for costs incurred for the cleanup.”
It remains unclear how such designations might affect drinking water providers and wastewater treatment systems. However, advocates for such systems are concerned that these systems might find themselves on the hook for Superfund-related expenses.
“Anyone who is found to have contributed to the introduction of a hazardous substance under CERCLA is financially liable for the cleanup costs,” says Nathan Gardner-Andrews, the general counsel and chief advocacy officer for the National Association of Clean Water Agencies. “Under a strict liability scheme, our utilities could potentially be found financially liable for the cleanup costs of those chemicals, even though they never profited from creating them or producing them.”
“We support a polluter pays model, which basically would put costs on the industries and the manufacturers that create these chemicals in the first place,” Gardner-Andrews says. That said, “we need an exemption or some type of liability limitation for (publicly owned treatment works) since they had no role in producing or profiting from these materials,” he notes. “It’s not fair to pass that cleanup cost on to the municipal ratepayer.” However, Gardner-Andrews acknowledges that it is an “unclear question” whether the EPA has the authority “to carve out certain sectors or industries” under CERCLA.
Even if the EPA decided not to pursue water and wastewater agencies as parties in future Superfund litigation related to PFAS, they still might not be in the clear, Via says. “Other responsible parties might draw them into litigation as a way of spreading the liability,” he notes.
Given the cost and difficulty associated with the removal of PFAS from water and wastewater streams, many in the sector view source control as the best way of addressing such contamination.
For example, the Association of Metropolitan Water Agencies “has long advocated for (the) EPA to use all its regulatory authorities to prevent PFAS from entering source waters,” says Diane VanDe Hei, AMWA’s CEO. “This is a complex task, but it is more effective and more equitable to control these pollutants at the source than to remove them at the consumer’s expense after (they) enter … a drinking water supply,” VanDe Hei says. “This strategy helps protect drinking water quality and ensures that polluters are not allowed to pass the cost of correcting the problem on to others.”
Along these lines, the EPA notes in its road map report that it plans to restrict PFAS discharges from industrial sources by means of its effluent limitations guidelines program. “ELGs establish national technology-based regulatory limits on the level of specified pollutants in wastewater discharged into surface waters and into municipal sewage treatment facilities,” the report states. Future rule-makings initially will target PFAS discharges from makers of organic chemicals, plastics, and synthetic fibers, followed by ELGs for the metal finishing and electroplating industries, according to the report.
The agency also will conduct “detailed studies” on PFAS discharges from other industrial sectors, including electrical and electronic components, textile mills, and landfills, according to the report. The EPA also will begin studies of other industrial categories for which it has little information about PFAS discharges.
The ELGs are “particularly relevant” for wastewater treatment agencies because the guidelines are “what drive the pretreatment standards that (such agencies) have to adhere to in their pretreatment programs,” Gardner-Andrews says. Under the EPA’s national pretreatment program, publicly owned treatment works may be authorized to conduct such duties as monitoring and inspecting industrial users, evaluating their compliance with pretreatment requirements, and taking enforcement actions.
ELGs and the pretreatment program can go a long way toward reducing PFAS and other industrial pollutants before they enter municipal wastewater streams or the environment, but they are not a panacea, James Pletl, Ph.D., the director of the water quality department at Virginia’s Hampton Roads Sanitation District, recently told the House Committee on Transportation and Infrastructure’s Subcommittee on Water Resources and the Environment.
Testifying on behalf of NACWA during the subcommittee’s Oct. 6 hearing on PFAS and other emerging contaminants, Pletl cited the “additional burdens” faced by clean water utilities that either must initiate pretreatment programs or enlarge existing programs to accommodate a growing list of contaminants. At the same time, industrial pretreatment programs “will not control or eliminate the domestic inputs of PFAS to the wastewater treatment plant from everyday household products,” Pletl noted.