Helping water and wastewater utilities navigate the impacts of proposed EPA rule on PFOS and PFOA

In September 2022, the EPA published in the Federal Register that it proposes to add PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), otherwise known as Superfund. It is anticipated the proposed Rule will be promulgated by mid-2023, which will require reporting of a release at or above the reportable quantities (RQ) to the National Response Center within 24 hours. Until the EPA promulgates a specific RQ for PFOA and PFOS, the default RQ is one (1) pound or more in a 24-hour period. There is a possibility the EPA could add other PFAS compounds to the final Rule before it is promulgated.

The proposed Rule identifies wastewater treatment plants (among other industrial operations) as being impacted by the Rule. Although not explicitly mentioned, it is likely that the ruling could also impact water treatment facilities that provide PFAS treatment and produce waste streams e.g. spent treatment media, which would require regeneration or disposal. The proposed Rule also requires PFOA and PFOS be listed and regulated as hazardous materials by the US Department of Transportation (DOT) under the Hazardous Material Transportation Act (HMTA).

Water, wastewater and stormwater systems are passive receivers of PFAS resulting from a variety of industrial, commercial and domestic uses. Upon promulgation of the Rule, owners and operators of water and wastewater treatment facilities will be required to report a release at or above the reportable quantities of PFOA or PFOS to the National Response Center. We believe most water and wastewater treatment facilities across the US will likely not be required to report under the proposed Rule as typical PFOA and PFOS quantities in treated wastewater effluent, water treatment media and biosolids will most likely be less than the reportable quantities. However, potential exceptions could include:

• If the raw water (surface water or groundwater) for a water treatment plant (WTP) is heavily impacted by PFAS, resulting in a high concentration of PFAS accumulated on treatment media (E.g. carbon adsorption media, which may require reporting during disposal/regeneration), or
• If a WWTP receives wastewater from a significant industrial user(s) of PFAS, and other PFAS impacted waste streams such as landfill leachate or septage

The proposed Rule could also potentially impact filter backwash streams, disposal options for treatment media such as activated carbon or ion exchange resin, membrane reject streams produced during potable water treatment and disposal of water treatment residuals. For WWTPs, the proposed Rule can apply to discharge of treated wastewater effluent, treated biosolids and air emissions, and therefore, can affect how each of these streams are managed.

Given the uncertainty of the issue, the widespread presence of PFAS, and to verify compliance status, we recommend the concentrations of PFOA and PFOS in the wastewater, spent treatment media and biosolids be assessed. This provides more certainty to help owners and operators understand whether your facility will be impacted by the Rule and will help to assess reporting requirements.

Although wastewater utilities have the potential to invoke affirmative defenses built into the existing CERCLA regulations, such as permitted discharge under the NPDES and Part 503 Programs, the use of biosolids for land application could present major risks to utilities from third party litigation. Even when invoking these, a fair amount of litigation and costs associated will still be required to prove the defense. Owners and operators are therefore likely to experience increased operational challenges, reduced options for biosolids beneficial use, and increased management costs. The Rule, which will drive requirements for the Department of Transportation (DOT) to regulate PFAS as hazardous substances under the HMTA also has the potential to impact off-site transportation of biosolids and water treatment residuals for disposal or beneficial use.

National organizations representing wastewater utilities are deliberating with the EPA to provide wastewater treatment facilities an “explicit” exemption under CERCLA. The EPA has expressed it is not their intent to start regulating these facilities under CERCLA but has not yet agreed to provide water and wastewater treatment facilities an exemption. Our first step recommendation is for owners and operators of water and wastewater utilities, in collaboration with industry organizations, to continue to reach out to the regulators to request that water and wastewater facilities be granted an exemption under CERCLA.

In parallel, we recommend utilities act now to evaluate operational risks and develop mitigation plans to address the regulatory uncertainty related to PFAS. This could include actions such as:

• Characterization, fate and transport of PFAS throughout operations, including water, wastewater, biosolids and spent media
• Evaluation of existing treatment systems and ability to remove and/or treat PFAS
• Treatability trials to develop PFAS removal (separation) and destruction solutions
• Adaptive planning in light of the regulatory uncertainty
• Evaluate alternative approaches for managing biosolids produced during wastewater treatment, especially if biosolids are land applied
  
  

For further information on our PFAS capabilities related to this subject, please connect with Jay Surti or Tamara House Knight.