Van Hollen, Gillibrand, Colleagues Call For EPA To Further Address Toxic PFAS Pollution In Upcoming Guidance

Today, U.S. Senator Chris Van Hollen (D-Md.) joined Senator Kirsten Gillibrand (D-N.Y.), along with 12 of their Senate colleagues, in sending a letter calling for the United States Environmental Protection Agency (EPA) to increase its efforts to stop the flow of per- and polyfluoroalkyl substances (PFAS) into our communities. Ahead of the EPA’s upcoming guidance to state permitting authorities on how to address PFAS in National Pollutant Discharge Elimination System (NPDES) permits, the senators are urging Administrator Michael S. Regan to take further steps to limit industrial PFAS discharges. NPDES permits are an important tool under the Clean Water Act that, if used properly, can promptly rein in harmful PFAS pollution. In the letter, the senators explain that the NPDES guidance should supports the goal of eliminating PFAS discharges into the environment, clarify that all known or suspected sources have an obligation to monitor and disclose PFAS in their effluent, and recognizes that Publicly Owned Treatment Works (POTWs) have the authority to require pretreatment of indirect discharges they receive.

“Efforts to contain and remediate PFAS contamination are not only challenging and costly, they are also inequitable and inefficient. Across the country, ratepayers and drinking water providers are spending or expecting to spend hundreds of millions of dollars to try to address PFAS contamination, and the federal government recently announced an additional $10 billion in funding to assist states and water utilities with remediation,” wrote the senators. “Specifically, we urge the EPA to include three important safeguards in the upcoming guidance. Fortunately, the Clean Water Act and EPA’s existing regulations already provide the tools needed to stop the flow of PFAS pollution into our nation’s waters and ensure that manufacturers bear the costs of preventing and controlling PFAS contamination.”

In April, EPA issued guidance for federally-issued NPDES permits under the Clean Water Act that recognizes the need to identify and control sources of PFAS pollution, including industrial sources that discharge directly to waters and those that send waste through POTWs.

The letter led by Senator Gillibrand was signed in addition to Senator Van Hollen by Senators Cory Booker (D-N.J.), Elizabeth Warren (D-Mass.), Dick Durbin (D-Ill.), Sheldon Whitehouse (D-R.I.), Jeff Merkley (D-Ore.), Dianne Feinstein (D-Calif.), Bernie Sanders (I-Vt.), Patrick Leahy (D-Vt.), Richard Blumenthal (D-Conn.), Alex Padilla (D-Calif.), Ron Wyden (D-Ore.), and Ed Markey (D-Mass.).

Full text of the letter can be found here and below.

Dear Administrator Regan,

We are writing to thank you for recent actions you have taken to address PFAS pollution in the environment and to urge you to take additional steps to stop the flow of these toxic pollutants into our communities through EPA’s upcoming guidance to state permitting authorities to address PFAS in NPDES permits.

Per- and polyfluoroalkyl substances, commonly referred to as “PFAS,” are man-made chemical substances that have been manufactured for decades despite evidence of their health risks and extraordinary persistence in the environment and our bodies. The strength of the carbon-fluorine bond, which is the basis for commercial applications of PFAS, is also the reason the chemicals take so long to break down. When PFAS pollution is put into the environment, it is difficult and expensive to contain and remediate. For example, PFAS sent to sewage treatment works will generally pass through the treatment process, remaining in treated water and biosolids. From there, it can contaminate additional ecosystems, drinking water sources, and the food chain. This is already happening, causing a nationwide PFAS contamination crisis.

Efforts to contain and remediate PFAS contamination are not only challenging and costly, they are also inequitable and inefficient. Across the country, ratepayers and drinking water providers are spending or expecting to spend hundreds of millions of dollars to try to address PFAS contamination, and the federal government recently announced an additional $10 billion in funding to assist states and water utilities with remediation. It is not fair for consumers to bear the costs of PFAS treatment, particularly low-income customers for whom the costs are hardest to absorb when manufacturers are responsible for and profiting from the production of PFAS. It is also far more cost-effective for manufacturers to treat their pollution, rather than municipal wastewater or drinking water facilities, given that treatment costs are tied to the volume of contaminated water and that manufacturers typically treat considerably less water than utilities. Thus, addressing this pollution at the source is the most effective, efficient, and equitable solution in the long term.

Fortunately, the Clean Water Act and EPA’s existing regulations already provide the tools needed to stop the flow of PFAS pollution into our nation’s waters and ensure that manufacturers bear the costs of preventing and controlling PFAS contamination.

EPA’s October PFAS Roadmap acknowledges that the National Pollutant Discharge Elimination System (NPDES) permitting process is an important existing tool that if used properly, can promptly rein in harmful PFAS pollution. In April, EPA issued guidance for federal NPDES permits under the Clean Water Act that recognizes the need to identify and control sources of PFAS pollution, including industrial sources that discharge directly to waters and those that send waste through Publicly Owned Treatment Works (POTWs). That guidance supports the goal of eliminating PFAS discharges into the environment, clarifies that all known or suspected sources have an obligation to monitor and disclose PFAS in their effluent, and recognizes that POTWs have the authority to require pretreatment of indirect discharges they receive. We welcome this important guidance and see its potential to significantly reduce PFAS pollution.

However, the vast majority of dischargers are not covered by the April guidance because they operate in the 47 states that issue their own NPDES permits. Guidance is still needed for those sources, as reflected in the Agency’s PFAS Roadmap and in the press release announcing the April guidance. We urge you to incorporate the strengths of the April guidance into that guidance, and to go further, in keeping with existing statutory and regulatory requirements.

Specifically, we urge you to include three important safeguards in the upcoming guidance.

First, we encourage you to clarify that known or suspected sources have an ongoing obligation to disclose PFAS pollution as part of their existing NPDES permit and cannot delay disclosure until the next permit cycle. As you recognized with respect to The Chemours Company’s illegal discharges in North Carolina, the Clean Water Act currently requires dischargers to disclose PFAS pollution—either as part of a permit application or in an amendment to that application if PFAS are discovered after a permit is issued. These legal requirements must be more consistently enforced.

Second, the guidance should set forth clear requirements to incorporate Technology Based Effluent Limits (TBELs) on a case-by-case basis in NPDES permits for industrial PFAS dischargers. Existing law and regulations explicitly state that TBELs are the minimum level of pollution control required, but they have not been consistently implemented for PFAS. By issuing clear guidance requiring case-by-case TBELs, EPA has an opportunity to help permitting agencies across the country and dramatically reduce PFAS pollution.

Third, we ask you to clarify that POTWs must evaluate the introduction of PFAS into their systems and use existing authority to ensure Industrial Users are pretreating consistent with the prohibition on pass-through or interference. Existing law and regulations make clear that POTWs have a duty to impose pretreatment requirements on Industrial Users to address pollutants that will compromise the POTWs or pass through their treatment methods, leading to violations. Because PFAS are pollutants under the Clean Water Act, ongoing unpermitted discharges of them from POTWs are violations of the statute, necessitating pretreatment. Some POTWs have begun to institute pretreatment requirements, but nationwide guidance will support all POTWs in doing so. It would also reduce PFAS pollution, reduce costs for POTWs, and prevent a race to the bottom.

PFAS pollution is a serious threat to the communities we represent. We thank you for taking this crisis seriously and urge you to use your existing authorities under the Clean Water Act to make meaningful reductions in PFAS exposure in the near term.

Sincerely,