(December 2, 2020) – EPA’s Assistant Administrator for the Office of Water, Dave Ross, recently signed a memorandum addressed to EPA Regional Administrators recommending an interim strategy on PFAS specifically for federally issued National Pollutant Discharge Elimination System (NPDES) permittees. However, it is likely many state permit writers will also follow the memo’s recommendations. 

The memo recognizes EPA’s work to date on its 2019 PFAS Action Plan and the ongoing work underway, but it calls for a more tailored interim strategy to address PFAS in NPDES permits and ultimately guide EPA’s NPDES permitting approach moving forward.

To devise this interim strategy, EPA formed a workgroup that included key Office of Water staff and Water Division Directors from each Regional Office, along with other Regional Office representatives and input from state partners. The workgroup made three recommendations:

• Include permit requirements for phased-in monitoring and best management practices (BMPs), as appropriate, taking into consideration when PFAS are expected to be present in point source wastewater discharges;
• Include permit requirements for phased-in monitoring and stormwater pollutant control, as appropriate, taking into consideration when PFAS are expected to be present in stormwater discharges;
• Information sharing on permitting practices and the development of a permitting compendium, an information sharing platform, and continuation of the workgroup.

NACWA is aware that EPA Region 1, particularly in Massachusetts where EPA is the CWA-permitting authority, has already initiated a phased-in monitoring approach in some NPDES permits. NACWA is concerned that, in these cases and with the recent memorandum, phased-in monitoring could move forward within a short time period of EPA making methods available to the public or publishing the multi-lab validated methodology on its website, and not after a public notice and comment period or formal method approval under 40 CFR Part 136.

While the memo notes a preference for 40 CFR Part 136 approved methods, it allows the permit authority to use discretion to specify the use of suitable methods. Along these lines, NACWA has concerns with SW-846/Method 8327, which tossed out 11 of the 24 analytes, for problems with reproducibility, response and recovery. This method is especially problematic when the interim PFAS strategy recognizes the “need for accuracy and precision” in analytical methods and data.

EPA anticipates it will publish its final multi-lab validation for SW-846/Method 8327 in early 2021 and will begin the more preferrable multi-lab validation for SW-846 isotope dilution later in 2021.

Additionally, the memo recommends permit writers consider and incorporate BMPs when appropriate, but it does not provide clarification beyond a general footnote referencing the authority granted to POTW-approved pretreatment programs under 40 CFR Part 403.8. The recommendation made would apply to federally permitted POTW pretreatment programs that regulate indirect dischargers.

The second recommendation references stormwater, particularly municipal separate storm sewer system (MS4) and industrial stormwater permits. This effort, at least on the industrial stormwater permitting side, is consistent with comments state regulatory agencies made to EPA while it was going through the public comment period for the 2020 proposed Multi-Sector General Permit (MSGP). On the MS4 front, EPA’s interim strategy clearly identifies the maximum extent practicable (MEP) standard and the inherent flexibility MS4s have under the CWA to reduce the discharge of pollutants.

The last recommendation references a PFAS permitting compendium that would serve as a reference for states and EPA to learn about different permitting approaches. In addition, the workgroup encourages the use of EPA’s NPDES Permit Writers Clearing house as a tool for sharing information.

NACWA members should be aware that this memo and the interim recommendations only legally apply in areas where EPA is the permitting authority. It appears, however, some states may also follow the memo’s recommendations and that it reflects where EPA would like to head eventually for the larger NPDES program.

If members have questions, please contact Emily Remmel, NACWA’s Director of Regulatory Affairs.