The U.S. EPA has rescinded a 2022 guidance document that gave state permitting authorities standard language they could use to limit, reduce and monitor per- and polyfluoroalkyl substances in wastewater.
The guidance was nonbinding. But it gave state agencies reassurance that they could begin to tackle PFAS contamination from industrial sites upstream of drinking water sources — including landfills, pulp and paper plants and other manufacturing facilities — through National Pollutant Discharge Elimination System permits.
The agency made the move in August as part of a broader rescission of five documents, including memoranda addressing climate change and environmental justice considerations for water permits, Inside EPA first reported. The three-page memo, published Aug. 11 and signed by Office of Water Assistant Administrator Jessica Kramer, said the changes were made as part of a systematic review of guidance documents, informed in part by recommendations made to the Office of Management and Budget's deregulation initiative.
The agency also said in a statement to Waste Dive that the change would reduce confusion as it prepares to propose new Effluent Limitation Guidelines for industrial sources.
"EPA’s review of existing guidance related to PFAS and NPDES permits found that the Biden Administration put the cart before the horse when it leveraged the nation’s foundational wastewater discharge compliance program – NPDES permitting – to address PFAS without first setting wastewater discharge standards for specific PFAS and specific sectors under the Effluent Limitation Guidelines provision of the Clean Water Act," the agency's press office wrote in an unattributed statement.
Melanie Benesh, vice president of government affairs for the Environmental Working Group, said that the rescission would do the opposite of its stated effect, creating confusion about the role states should play in addressing PFAS in wastewater.
"State governments have shown again and again and again that they're leading the fight against PFAS, and this removes one critical tool for state regulators to make us more safe," Benesh said.
Wastewater permits operate differently than drinking water regulations, which are governed by the Safe Drinking Water Act and have also gone through changes during the Trump administration. PFAS chemicals are not currently considered toxic pollutants under the Clean Water Act. As a result, restrictions on releases of the family of chemicals are typically set through individual facility permits.
Those permits, in turn, are usually set by state regulatory agencies. They have discretion to set limits that they believe are appropriate to protect water resources, and in some cases have gone beyond federal requirements.
New York lawmakers, for instance, passed a state bill this year that would require PFAS monitoring through water permits for certain facilities. That law is currently awaiting action from Gov. Kathy Hochul.
But EWG said some states may be more reticent to incorporate the now-rescinded guidance. Doing so could run contrary to new guidance the EPA releases, which may urge different testing methods, or open up state permitting authorities to legal challenges, Benesh said.
"This guidance document, even though it is just a guidance document, was a really important signal to those state regulators that this is something that you should be trying to address in your facility permits, and this is how we think you should do it," she said. "I think there could be a chilling effect on how state regulators use this guidance or use the advice that was in this guidance that's now being rescinded."
While most states have been authorized under the Clean Water Act to exercise NPDES permitting authority, the EPA remains the permitting authority in Massachusetts, New Mexico, New Hampshire, the District of Columbia and U.S. territories. The federal agency also sets NPDES permits for military bases, which have drawn scrutiny as a major emitter of PFAS through firefighting foam.
Permits in those jurisdictions may not include PFAS provisions as a result of this move, Benesh said.
The 2022 guidance was published as a step along the EPA's PFAS Strategic Roadmap set the previous year under President Joe Biden. The road map laid out plans to leverage NPDES permits to begin tackling upstream sources of PFAS and gathering data to inform future regulation, including Effluent Limitation Guidelines.
The EPA did not respond to questions this week about whether it was able to gather data as a result of this guidance, or whether it would use the data to craft new regulation.
The agency published an advanced notice of proposed rulemaking in March soliciting information for effluent limitation guidelines for PFAS from manufacturers of the family of chemicals. It also indicated on its regulatory agenda that it plans to propose ELGs to address PFAS in chromium electroplating facility wastewater in February, though that deadline is not binding. The agency has previously indicated landfill ELGs could come in 2027.
