Recommending Federal Discharge Standards for PFAS in Aquatic Life

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Known as “forever” chemicals, many PFAS compounds are found in the blood of people and animals all over the world.  They also present at low levels in various food products and in the water, air, fish and soil in many areas. 

Many environmental advocates have called for the U.S. Environmental Protection Agency (EPA) to set enforceable federal discharge standards for PFAS under the Clean Water Act.  Currently, no such federal regulations exist.  Water utilities in various states have expressed concern that these types of regulations would leave them – and their customers – stuck with hefty bills to remove PFAS from drinking water.  Further, litigation surrounding PFAS has become prolific – including claims of personal injuries from contaminated drinking water, diminished property values based on soil contamination and costs of remediating water and soil contaminated with PFAS.  While the litigation originally centered on manufacturers of PFAS chemicals, it has expanded in recent years to include companies in the supply chain, and will only keep expanding. 

In October 2021, the EPA published its “Strategic Roadmap for PFAS” to address PFAS contamination on various fronts.  The goals of this roadmap are to research, restrict and remediate PFAS contamination.  As part of this Strategic Roadmap, the EPA recently announced that it has proposed, under the Clean Water Act, draft recommendations for aquatic life.  These draft recommendations include ambient water quality criteria for both perfluorooctanoic (PFOA) and perfluorooctane sulfuric acid (PFOS).  The purpose of these draft criteria is to reflect the latest in scientific research regarding the effects of both PFOA and PFOS on freshwater organisms. Because these draft criteria are developed under the Clean Water Act Section 304(a), if implemented, they would be merely guidelines for state and tribal governments to adopt water quality standards. These standards are intended to ultimately provide a basis for controlling PFOA and PFOS pollutants, stopping short of the legally mandated regulations requested by advocates. However, the Clean Water Act Section 303(c)(1) does require states and authorized tribes to review recommendations and, if appropriate, modify their water quality standards every three years.  This means that more states may adopt regulations that conform with the EPA’s recommendations.

The draft recommendations quantify the toxicity of PFOA and PFOS chemicals on aquatic life, and provide separate PFOA and PFOS criteria to protect fish and other aquatic life. They are designed to protect at least 95% of the tested aquatic organisms.  The draft recommendations contain both acute and chronic criteria for freshwater, as well as criteria for tissue based concentrations to protect aquatic life from bioaccumulation.  The recommendations for both PFOA and PFOS chemicals are intended to be independent of one another with neither criteria taking priority over the other.  The proposed recommendations were peer reviewed prior to publication but, admittedly, do not take into account the economic impact of implementation – the very concern raised by many public utilities and manufacturers of these chemicals.

In the face of these new, proposed recommendations – as well as the threat of expanding litigation – it is critical that companies potentially impacted by the EPA’s Strategic Roadmap (and the resulting recommendations) evaluate their compliance strategies to make certain their current plans are compliant with these recommendations as well as any resulting state regulations.