17607_PMAA_Authority_June_2024

By Michael T. Korns, Esq., Babst Calland and Amanda L. Brosy, Esq., Babst Calland 1 This arƟcle was submiƩed for publicaƟon on April 12, 2024 and thus does not include any developments aŌer that date. ConƟnued on page 44. Municipal authoriƟes and other public enƟƟes in Pennsylvania have long been familiar with the weight and burden of DEP and EPA mandates and regulaƟons. Whether it involves issues with stormwater infiltraƟon, erosion and sediment control, or any number of issues related to water treatment, all too oŌen authoriƟes must correct issues that they did not cause. Given that history, authoriƟes should brace themselves, because new regulaƟons will put them in the crosshairs again. PFAS – A pollutant that means forever. The new issue facing authoriƟes relates to a large group of man-made chemicals known as per- and polyfluoroalkyl substances, or “PFAS” for short. PFAS are resistant to heat, oils, stains, and water, and for that reason, PFAS have been incorporated into a wide variety of consumer products and industrial processes since the 1940s. They are ubiquitous in the environment and are known as “forever chemicals” because they do not readily break down in nature. Ongoing research shows a variety of potenƟal health risks related to PFAS exposures. Pennsylvania has adopted PFAS standards related to drinking water and environmental cleanup, and EPA, which is working to address PFAS polluƟon on mulƟple regulatory fronts, recently finalized the first-ever naƟonal drinking water standard related to PFAS. In December 2023, DEP also updated its NPDES Individual Industrial Wastewater permit applicaƟon to include PFAS sampling. ApplicaƟons going forward are required to include sampling for four PFAS: PFOA, PFOS, PFBS, and HFPO- DA (commonly referred to as GenX) as part of Pollutant Group 1 sampling. Because sampling is required under Pollutant Group 1, all industrial categories are subject to the sampling requirements. The heart of the issue for authoriƟes is this: the eliminaƟon of PFAS in drinking water is a regulatory priority for both EPA and DEP. This is an important goal, and with appropriate grant funding, authoriƟes could be an important partner in removing these chemicals from both the natural environment and our own drinking water, as they have done with the eliminaƟon of lead water lines. Unfortunately, many of the exisƟng and proposed regulaƟons tend to take a less cooperaƟve approach, requiring regulated enƟƟes to ensure that PFAS are eliminated from the material in their possession, regardless of whether that enƟty created or used the PFAS at issue. As is immediately obvious to anyone reading this, PFAS regulaƟon presents a massive challenge to municipal water and wastewater authoriƟes. Because PFAS have been used in so many different products and industries, it is very likely that wastewater treatment plants are receiving water that already contains levels of PFAS that would be in violaƟon of the upcoming DEP and EPA standards. Water treatment faciliƟes may also find PFAS in water sources, whether surface or groundwater. Given the ubiquity of PFAS, even water treatment plants fed enƟrely from natural sources may find PFAS present at unacceptable levels. PotenƟal Impacts The list of potenƟal ways in which new PFAS regulaƟons are likely to impact authoriƟes is numerous, but a non- exclusive list includes the following. NaƟonal Primary Drinking Water RegulaƟon (NPDWR) On April 10, 2024, EPA released a final NPDWR that sets legally enforceable limits (maximum contaminant levels, or MCLs) in drinking water for six different PFAS. The federal standard becomes immediately effecƟve in Pennsylvania, replacing the prior Pennsylvania standards. Notably, the rule sets an MCL of 4 parts per trillion (PPT) for PFOA and PFOS. The NPDWR requires public water systems to complete their iniƟal