WQC For PFOA and PFOS Out For Public Comment:  What You Should Know

What’s being proposed?

The United States Environmental Protection Agency (U.S. EPA) published the Draft Recommended Aquatic Life Ambient Water Quality Criteria (WQC) for Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonic Acid (PFOS) in the May 3, 2022 Federal Register (FR).   The comment period for these WQC ends June 2, 2022.  U.S. EPA is establishing recommended criteria based on best available science at the time of publication. Establishing aquatic life ambient WQC is one of the first steps, along with establishing maximum contaminant level (MCL) to regulating PFOA and PFOS under the National Pollutant Discharge Elimination System (NPDES) permits.  Table 1 from the FR shows the recommended WQC.

TABLE 1—DRAFT RECOMMENDED FRESHWATER AQUATIC LIFE WATER QUALITY CRITERIA FOR PFOA AND PFOS

Why are U.S. EPA Recommendations for new WQC important?

WQC are established under Section 304(a)(1) of the Clean Water Act (CWA).  The CWA directs U.S. EPA to develop and publish criteria reflecting the latest scientific data. The recommendations published by U.S. EPA are not regulations but are provided for authorized states and tribes to adopt. CWA Section 303(c)(1) requires states to review and modify, if appropriate, their water quality standards at least once every three years, which is known as the Triennial Review. Additional public comments will be taken during each state’s triennial review process.

Once a WQC is adopted by a state, those criteria are used to develop regulatory limits for NPDES permits and assess water bodies for impairments, with corresponding development of total maximum daily loads (TMDLs) for particular pollutants.

Water quality-based effluent limitations (WQBELs) may be incorporated into NPDES permits where a discharger’s effluent has the potential to cause the receiving stream to exceed the WQC for a given pollutant or where a TMDL has been established. For bioaccumulative compounds such as PFOA/PFOS, NPDES permits may contain both a short-term (e.g., daily) and long-term (e.g., annual) discharge limit.  States may implement compliance schedules in NPDES permits to allow dischargers time to meet the new discharge limit and/or pollutant minimization plans (PMPs) for impaired waters (water bodies that do not meet the WQC).

How can my industry or company provide input into the process?

The timeline from Draft Recommended WQC to implementation of WQC as permit limits can be as long as 3 to 5 years depending on the Triennial Review schedule for your state and development of regulations once the WQC are adopted. States may have provisions for automatic updates to certain permits or may require those criteria to be added during permit modifications and renewals.

The first step is to establish whether the Draft WQC are applicable to your process. PFOA and PFOS have a wide range of uses and are used in many industries. If WCQ for PFOA and PFOS are applicable to you, there are many opportunities to provide comments. It is easier to influence potential changes to your compliance at the beginning of the process than at the end.

U.S. EPA is currently taking comments on the recommended WQC limits. Comments should consider the scientific data used to develop the criteria and how the criteria are applied. Once published as recommended WQC, the next opportunity to comment is during each state’s Triennial Review. Once a state adopts the WQC, input on how it is applied to your specific permit or water body is more difficult, but public comments are still taken during permits renewals, waterbody designations, and development of TMDLs.

ALL4 assists industry associations and companies with regulatory reviews and development of comments. If you are interested in learning more about our work or would like to discuss this or other water issues, please contact Karen Thompson at Kthompson@all4inc.com or Lizzie Smith at LSmith@all4inc.com.