It's really legal to discharge PFAS used in industrial processes to surface water...should it be??

On April 10, 2024, the US Environmental Protection Agency (EPA) issued a final National Priority Drinking Water Regulation for 6 per- and polyfluoroalkyl substances (PFAS) to control the maximum contamination allowed for these compounds in our drinking water. Drinking water providers have 5 years to reduce the 6 named PFAS compounds in their water to levels below the Maximum Contaminant Level (MCL). While this new regulation is a great step in the right direction - controlling the very water we are consuming, a far more complex issue looms on the horizon...controlling PFAS sources BEFORE they enter our drinking water. "Wait" you say. "PFAS discharges from industries that use PFAS as a part of their production process aren't fully regulated under the Clean Water Act?" 

Strange perhaps, but true. As noted in a March 12, 2024 Congressional Research Service report, despite a requirement under the Clean Water Act to establish technology based Effluent Limitation Guidelines (ELGs) for industrial dischargers, "the EPA has not yet published any final technology-based effluent limits or water quality criteria to address any PFAS, nor has it established requirements for PFAS in biosolids." Without EPA's designation of PFAS as a hazardous substance or toxic pollutant, industries can legally discharge PFAS to surface waters or to ponds to concentrate solids while evaporating liquids, thus allowing the PFAS concentrations to accumulate in these facilities. Solids control facilities can leak. They can flood. Either way, the surface water discharges and solids control facilities can be near continuous sources to our surface waters and potentially our groundwater. 

Where is this all headed? The good news is that the EPA has a roadmap for updating ELGs and is scheduled to complete most of its work in 2024 according to its 2021 PFAS Strategic Roadmap. EPA is also working on a risk assessment for biosolids and expects to determine whether or not to regulate PFOA and PFOS in particular when found in biosolids. Even when an ELG is not developed, under the National Pollutant Discharge Elimination System (NPDES) authority, states or the EPA may choose to regulate industrial dischargers through technology based effluent limits. The EPA is also scheduled to develop human health criteria for PFOS and PFOA in surface waters under Section 304(a) of the Clean Water Act in 2024. 

It may be legal, but is it ok? So, at the present time, it appears that industries are largely unregulated in discharging specific PFAS compounds to surface waters by the Clean Water Act. This issue is drawing a considerable amount of attention in our Congress. Given how much we now know about PFAS and the risks of specific compounds like PFOA and PFOS, is it really ok to keep discharging this to the environment? 

What can be done?  Write your elected officials and members of Congress to act on the bills related to PFAS quickly. So far in the 118th Congress, no bills related to PFAS in surface water have passed in either chamber. Let's work to change that.