When it comes to tackling toxic ‘forever chemicals’, the Clean Water Act has many powerful, yet underutilized, policy tools
President Biden has pledged to take quick action on toxic fluorinated ‘forever chemicals’ known as PFAS “by designating PFAS as a hazardous substance, setting enforceable limits for PFAS in the Safe Drinking Water Act, prioritizing substitutes through procurement, and accelerating toxicity studies and research on PFAS.” These are welcome—and necessary—steps that must be taken to address this toxic pollution, but there’s a lot more the Biden administration can do.
There has been much focus on the need to set enforceable drinking water standards for PFAS, and less discussion on how the U.S. Environmental Protection Agency (EPA) and states can act right now, using the pollution prevention tools of the Clean Water Act (CWA) to rein in this increasing public health threat. President Biden should direct EPA to notify states of their existing CWA authority to control PFAS pollution in surface waters, as well as propose new CWA regulations to prevent these toxic chemicals from getting into our nation’s drinking water sources in the first place.
What are PFAS?
PFAS (per-and poly-flouroalkyl substances) are a class of human-made chemicals that are toxic even in very low concentrations. Because they are stain and oil resistant and repel water, PFAS have been widely used since the 1950s in many common consumer products, including carpets, clothing, cookware, cosmetics, and food packaging.These “forever chemicals” are highly persistent and mobile in the environment, which means they bioaccumulate and travel unchanged through streams, rivers, and other water bodies, including drinking water sources. PFAS are linked to serious health problems including damage to liver, thyroid, and pancreatic function, immune system harm, hormone disruption, high cholesterol, and cancer.
Clean Water Act 101
The Clean Water Act (CWA) was passed in 1972 with the objective “to restore and maintain the chemical, physical and biological integrity of the nation’s waters.” The CWA safeguards rivers, streams, lakes, and wetlands by limiting the amount of pollution that flows into them.
Both EPA and states share responsibility to fulfill the requirements of the CWA. EPA’s primary role is to implement and enforce water pollution control programs, such as Effluent Guidelines, which are wastewater standards established for different industries. EPA also develops national water quality criteria for pollutants—how much of a particular pollutant can be present in surface water before it is likely to harm human health or aquatic life. States are responsible for most of the day-to-day implementation and enforcement of the CWA, such as managing water pollution permit programs. States also establish, review, and revise water quality standards that define goals and pollution limits for protecting waters within their borders.
States must follow the minimum EPA regulatory requirements and some even have stricter pollution regulations. Other states have laws or constitutional limits that prohibit them from passing regulations more protective than federal requirements, which is why having strong national water pollution standards is vital.
Clean Water Act policy tools states can exercise to control PFAS
Because there are no federal water quality criteria or effluent standards for PFAS, it is critical that states use their existing CWA authority to regulate these toxic chemicals.
Require PFAS monitoring and effluent limits in wastewater discharge permits
In order to comply with the CWA, anybody who wants to discharge pollutants into U.S. surface waters must have a National Pollutant Discharge Elimination System (NPDES) permit. States are responsible for issuing and enforcing NPDES permits.These permits contain different requirements, such as monitoring and pollutant effluent limits, to ensure compliance with state water quality standards. States can even revoke a facilities’ NPDES permit, as North Carolina did in 2017 to stop the chemical company Chemours from dumping GenX into the Cape Fear River. States can also make companies clean up their pollution, as North Carolina recently did when it issued a new permit requiring Chemours to remove 99 percent of the PFAS from a contaminated stream that flows into the Cape Fear River, a main drinking water source for the southeastern part of the state.
Establish numeric water criteria for PFAS to protect human health and aquatic life
Though EPA has yet to issue numeric water criteria for any PFAS, states don’t need to wait to issue their own. In 2014 Michigan became the first state to establish human health water quality criteria for PFOA and PFOS, two of the more commonly found PFAS compounds in the state. Michigan has sampled surface waters throughout the state, and when a sample is at or exceeds the water quality criteria for PFOS and/or PFOA, the state conducts a source investigation.The state will also use these numeric criteria to set effluent limits in wastewater discharge permits, beginning in October 2021.
Use narrative criteria to protect waters from PFAS
Establishing numeric criteria can take states a year or longer, but they can use their existing narrative criteria to address PFAS more quickly. In July 2020 Colorado approved a PFAS policy that interprets the states’ existing narrative standards: “state surface waters shall be free from substances attributable to human-caused point source or nonpoint source discharge in amounts, concentrations or combinations which are harmful to the beneficial uses or toxic to humans, animals, plants, or aquatic life.” Colorado will use its narrative policy to conduct source investigations and source control, monitoring, and setting effluent limits in wastewater discharge permits.
Use Industrial Pretreatment Program to limit PFAS in municipal wastewater
Industrial pretreatment programs are designed to reduce pollutant levels discharged by different industries into municipal wastewater treatment plants. Many industries do not discharge directly into surface waters. They instead send their toxic wastewater to domestic wastewater treatment facilities, which can place the burden of removing toxic and other harmful pollutants on the wastewater treatment plant. Industrial pretreatment programs are intended to alleviate that burden. Michigan has had great success in using its industrial treatment program to require industrial dischargers to eliminate or dramatically reduce the amount of PFAS they send to municipal wastewater treatment plants. In some cases wastewater treatment plants were able to work with their industrial users to reduce PFAS discharges from 49 to 99 percent.
Collect information on known and suspected PFAS dischargers
Facilities with wastewater discharge permits have a “duty to provide” information to state permit writers when requested, such as whether or not they use or store products containing PFAS at their facilities. Using this provision, Colorado conducted a survey of its discharge permittees to understand where PFAS poses a risk to state waters. The state will use this information to identify if monitoring is needed for specific permits or certain industrial categories of permittees.
How is EPA using the Clean Water Act to address PFAS?
EPA is the early stages of gathering the information needed to revise CWA effluent guidelines and standards for certain industrial categories—organic chemicals, plastics, and synthetic fibers—to require them to control discharges of PFAS in the future. EPA is also developing new analytical methods to test for PFAS in wastewater. These methods will make it easier for states to monitor for PFAS in wastewater discharges.
In January 2021, EPA finalized its revised Industrial Stormwater General Permit, which includes recommendations on practices that could be used to limit PFAS stormwater discharges. Though this permit only applies to certain federal facilities, non-state territories, and the four states that EPA administers discharge permits for, other states often use EPA’s general stormwater permit as a model for their own. EPA has also issued an interim CWA permitting strategy for PFAS that recommends monitoring and best management practices to control PFAS in wastewater and stormwater discharges.This interim strategy only applies to states and U.S. territories where EPA is the permitting authority.
EPA can—and should—do more to regulate PFAS in surface waters
Rather than issuing weak recommendations or guidance, EPA should act swiftly to regulate PFAS in our nation’s surface waters using its authority under the Clean Water Act.
At a minimum, EPA should:
- Issue a memo to states reminding them of their duty to regulate PFAS in NPDES permits
- Revise effluent guidelines and standards for all industries known to discharge PFAS in order to eliminate or drastically reduce this toxic pollution
- Require pretreatment standards for industries using PFAS that send their wastewater to municipal wastewater treatment plants, and consider prohibiting significant industrial users from discharging PFAS to these treatment plants
- Establish health based water quality criteria for PFAS in surface waters
- List PFAS as a toxic pollutant under the CWA, which would trigger PFAS to be added to the CERCLA hazardous substance list
Using the tools of the Clean Water Act shifts the burden away from drinking water systems and communities to clean-up PFAS and back on to the polluters who financially benefit from using these toxic “forever” chemicals.