On March 17, the U.S. Environmental Protection Agency (EPA) published an Advance Notice of Proposed Rulemaking (ANPRM) that puts forth 28 questions directed at manufacturers and formulators of per- and polyfluoroalkyl substances (PFAS). The agency intends to use the ANPRM and comments it receives to initiate formal rulemaking to establish effluent limitations guidelines (ELGs) for facilities that manufacture or blend PFAS with other chemicals or products, likely at least initially as an amendment to the existing guidelines governing the “Organic Chemicals, Plastics and Synthetic Fibers” (OCPSF) industrial sector.
ELGs are sector-specific wastewater discharge limits based on the degree of pollutant reduction that can be achieved through demonstrated treatment technologies and controls taking into account feasibility, cost, and other factors. They can only be established through extensive notice-and-comment rulemaking and require significant technical and economic administrative record support. EPA is required to consider updates to existing ELGs or identify new industrial discharge categories potentially in need of control as part of its ongoing review obligations under the Clean Water Act. ELGs are incorporated into National Pollutant Discharge Elimination System (NPDES) permits for the covered sources.
The OCPSF sector currently includes, among other industries, manufacturers of PFAS. Note, however, that formulators of PFAS are not necessarily included within the existing OCPSF sector. Formulators are facilities that take raw PFAS feedstock and integrate the chemicals into new commercial products or intermediate products that are subsequently used in other consumer products. As a result, the data EPA gathers under this ANPRM may be used to revise other ELGs or create a new ELG category or subcategory. It is also likely that EPA will continue to evaluate the need for PFAS ELGs for other significant end-user sectors, such as commercial airports, textile and carpet manufactures, pulp and paper facilities, and other manufacturing sectors.
The ANPRM follows EPA’s January 11 release of its latest “ELG Plan,” where it announced it would be seeking new data to draft a PFAS ELG rule. Addressing PFAS in water has been a priority at EPA over the past several years, but after undertaking a multi-industry study on PFAS use, treatment, and discharges, the agency appears to be acknowledging that it currently lacks the data it needs to immediately move into a formal rulemaking process. The ANPRM should fill some of the information gaps EPA currently has on industrial sources of PFAS discharges, as well as the types and concentrations of the PFAS compounds contained in the discharges. Additionally, EPA may gain additional information regarding the number and locations of industrial sites that use PFAS, including the identities of known PFAS formulators and manufacturers. Thus far, the ANPRM has preliminarily identified six PFAS manufacturing sites and 10 possible PFAS formulators, but EPA expects these numbers to change. EPA may also seek to use other information gathering authorities to supplement the information it receives through the ANPRM process.
EPA also seeks information related to how PFAS manufacturers and formulators treat, manage, and dispose of PFAS-contaminated wastewater. To that end, EPA is requesting that wastewater monitoring data be accompanied by information on the analytical methods used by the manufacturers and formulators, in addition to information regarding any existing treatment systems currently deployed to limit discharges to surface waters or wastewater treatment plants. This information helps EPA determine whether it needs to move forward with a formal ELG process for particular source categories, and whether existing controls can achieve meaningful pollutant reductions. Industry frequently engages with EPA at this stage to ensure that EPA is acting on accurate information and is not simply regulating based on the perception of need. Importantly, EPA is also requesting data on any PFAS compounds detected in wastewater — not just the PFAS compounds that may already be monitored through individual NPDES permit requirements.
While this advance notice serves as an acknowledgement that EPA may currently lack the data it needs to set sector-specific standards, it does serve as a harbinger of regulations to come under the new administration. And while EPA is only in the advance stages of rulemaking, EPA will continue to work with its regions and states on strategies for monitoring and then regulating individual discharges of PFAS through the NPDES permit program. That this notice was a continuation of a Trump administration initiative under its PFAS Action Plan also speaks volumes about the level of bipartisan support targeted PFAS regulation currently has in the executive branch, on the Hill, and at the state and local community level. That support is expected to grow over the next few years.
The comment period on the ANPRM runs until May 17. For more information on how to submit comments, or to read the ANPRM, please visit the Federal Register.
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