17607_PMAA_Authority_June_2024

PFAs arƟcle conƟnued from page 21. monitoring for the chemicals within three years and noƟfy the public what levels are detected. Where PFAS are found at levels that exceed the new standards, systems must take steps to reduce those levels within five years. To help states implement tesƟng and treatment at public water systems, $1 billion has been made available through the Infrastructure Investment and Jobs Act. With this new rule in place, water uƟliƟes and municipaliƟes should begin evaluaƟng the technical and cost implicaƟons of conducƟng tesƟng and installing treatment systems to meet the NPDWR standards. Pretreatment The EPA is developing, or plans to develop, effluent limitaƟon guidelines that address PFAS for mulƟple industries, including landfills and metal finishers. Many authoriƟes accept wastewater from some of these industries. These guidelines are expected to include pretreatment standards that will need to be incorporated into pretreatment programs and reflected in the local limits with which all industrial users must comply. Biosolids Some authoriƟes dispose of biosolids at landfills. As part of its PFAS Strategic Roadmap, EPA is currently conducƟng a biosolids risks assessment for PFOA and PFOS, two of the most studied PFAS. Risk assessments are used to characterize the nature and magnitude of potenƟal harm to human health and the environment as a result of exposure to a chemical. EPA intends to finalize the risk assessment by December 2024. These risk assessments may result in addiƟonal tesƟng requirements and/or restricƟons for disposal or land applicaƟon of biosolids. Superfund Hazardous Substances DesignaƟon On September 6, 2022, EPA published a Proposed Rule to designate PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, CompensaƟon, and Liability Act (CERCLA, aka Superfund). In the Proposed Rule, EPA idenƟfies waste management and wastewater treatment faciliƟes as potenƟally affected enƟƟes. However, EPA has said it will focus its enforcement efforts on manufacturers and other enƟƟes that have released PFOA and PFOS into the environment. To that end, EPA is also working on an enforcement discreƟon and seƩlement policy that will outline its prioriƟes. The final rule and accompanying policy are expected to be issued someƟme this spring. Meanwhile, EPA has also requested public input on whether to designate other types of PFAS, besides PFOA and PFOS, as CERCLA hazardous substances. In light of the Biden administraƟon’s commitment to addressing PFAS issues on mulƟple fronts, we expect EPA to finalize the Proposed Rule and take steps to develop other rules to address PFAS releases to the environment under CERCLA and other federal environmental statutes. EPA InformaƟon CollecƟon Request The EPA is working to develop a study of influent to publicly owned treatment works across the naƟon. The goals of the study are to idenƟfy categories of industrial users discharging PFAS; collect data on PFAS in domesƟc wastewater influent to treatment works; characterize PFAS from industrial users and domesƟc sources; collect data on adsorbable organic fluorine concentraƟons in wastewater; and beƩer understand PFAS pass through in treatment works to biosolids and effluent. What Now? It is clear that authoriƟes will be impacted by the evolving PFAS regulatory environment in a variety of ways. If finalized, the proposed regulaƟons could require authoriƟes to develop and implement pretreatment protocols for industrial waste and then hold authoriƟes responsible for the PFAS that happen to enter their systems. While the EPA claims that it does not intend to make uƟliƟes a target of iniƟal CERCLA enforcement, its proposed “hazardous substances” rule does not absolve uƟliƟes from responsibility for the PFAS in their systems that they did not create or use. This is parƟcularly concerning because it may not be possible in all cases to idenƟfy the origin of PFAS in the system. AuthoriƟes in Pennsylvania should not wait for potenƟal enforcement to assess threats to their systems. If you are able to idenƟfy sources of PFAS, consider review of applicable pretreatment requirements on industrial customers. If there are PFAS in your system that you cannot idenƟfy the source for, then your solicitor should be closely monitoring final approvals of the upcoming regulaƟons to best understand what will be required of your authority in the months and years to come.  As the federal and state governments conƟnue to take acƟon to address PFAS across many program areas, Babst Calland aƩorneys conƟnue to track these developments and are available to assist you with PFAS-related maƩers. For more informaƟon on how municipal authoriƟes and other public enƟƟes can navigate the uncertainƟes and beƩer understand the new rules and regulaƟons, please contact Michael Korns at (412) 394-6440 or mkorns@babstcalland.com or Amanda Brosy at (202) 853-3465 or abrosy@ babstcalland.com .