As we previously reported, EPA published a PFAS Action Plan in 2019 designed to enhance and improve data gathering, regulatory development, enforcement, and communication related to per- and polyfluoroalkyl substances (PFAS). EPA continues to make progress implementing the PFAS Action Plan and is working on a more formal framework for addressing PFAS under the Clean Water Act. In the meantime, EPA’s Office of Water recently issued an interim strategy for addressing PFAS in National Pollutant Discharge Elimination System (NPDES) permits.

The interim strategy makes a number of recommendations for the consideration of PFAS in the NPDES permit program. Some of these recommendations involve gathering and sharing information, but others may directly impact permit requirements.

According to the interim strategy, permit writers should consider incorporating requirements for monitoring PFAS at facilities where PFAS are expected to be present in wastewater discharges. Specifically, PFAS may be incorporated into an NPDES permit in the absence of monitoring data if, “because of the raw materials stored or used at the facility, products or byproducts of the facility operation, or available data and information from similar facilities, the permit writer has a strong basis for expecting that the pollutant could be present in the discharge.” Under the interim strategy, NPDES permits may also incorporate best management practices to control or abate a PFAS discharge.

The interim strategy also suggests consideration of PFAS in stormwater permits. In situations where PFAS are expected to be present in stormwater, permit writers may consider monitoring requirements as well as stormwater pollution controls specific to PFAS.

The interim strategy recommends the ongoing information sharing on the development of PFAS requirements in NPDES permits. It also calls for the development of a compendium to compile practices, trends, and developments to address PFAS in NPDES permits around the country.

As of now, EPA has not provided much detail as to what may give it a “strong basis” to expect PFAS to be present in a discharge such that PFAS can be incorporated into an NPDES permit. Based on the language quoted above, however, it appears EPA may use not only information about the actual facility subject to the NPDES permit, but also information from similar facilities to make that determination. We will continue to follow these developments as the interim strategy is rolled out.

Photo of Megan Baroni Megan Baroni

I am an environmental attorney in Robinson+Cole’s Environmental and Utilities Group. I have worked with manufacturers, both big and small, on environmental compliance, risk management, and litigation matters for my entire career. My full firm bio can be accessed here.

As an…

I am an environmental attorney in Robinson+Cole’s Environmental and Utilities Group. I have worked with manufacturers, both big and small, on environmental compliance, risk management, and litigation matters for my entire career. My full firm bio can be accessed here.

As an environmental lawyer, I never want to be a roadblock to our client’s goals. I strive to understand the business of our manufacturing clients – what do you make and how do you make it? I want to know your objective, and I want to help you get there. Regulatory requirements and potential legal liabilities can sometimes seem daunting, but I help our clients develop an understanding of the requirements and all of the potential options so that we can create practical and cost-effective solutions to accomplish the objective. I work with management as well as the people who make our clients’ products every day, and I enjoy every part of it. It’s a good day for me when I can put on my hard hat and walk the factory floor.