PFAS

Background

The PFAS family constitutes a suite of more than 3,000 known chemical varieties that have been in production and in the environment since the 1940s. Recently, these chemicals have been detected in elevated concentrations in groundwater in certain parts of the country, especially near airports and military bases where aqueous film forming foams (AFFF) were used as well as near industrial manufacturing sites.

These synthetic chemical substances are engineered and utilized specifically for their strong carbon-fluorine bonds which are enormously effective at resisting heat, water, and oil. As such, PFAS chemicals are commonly found in everyday consumer products including fast food containers, nonstick cookware, stain resistant coatings, water resistant clothing and personal care products. Due to their chemical structure and their commercial value and use, PFAS are ubiquitous in the environment. They are also persistent, bioaccumulate, and do not readily degrade.

Potential Concerns for Clean Water Agencies

Public clean water utilities receive and treat a broad range of influent from heterogenous sources including domestic, industrial, and commercial sources. Given the ubiquity of PFAS compounds, it is highly likely all POTWs are receiving some level of PFAS in their influent, with significant variation across communities.  These PFAS chemicals can then be present in both POTW effluent and in biosolids, presenting potential legal and regulatory liability for public clean water utilities.   

However, wastewater utilities were designed prior to awareness of PFAS concerns and thus not designed to treat or remove PFAS chemicals. Because new standards could mandate costly investments and/or impose costly liability for utilities which did not generate or profit from PFAS, NACWA position is that the manufactures of these chemicals should bear responsibility for the costs of clean up and treatment – a “polluter pays” model.

One of the most challenging current aspects of the PFAS discussion is that there are no uniformed, approved testing methods or established risk thresholds.  Science has not yet determined which PFAS compounds and at what levels pose actual risk to human health.  Accordingly, NACWA has been advocating with Congress and EPA to promote further analysis into risks and appropriate remediation to ensure that federal the PFAS response is based on sound science.

Regulatory Action – Federal and State

The US Environmental Protection Agency (EPA) published its PFAS Action Plan in February 2019 detailing a strategy moving forward, but it will take time for each piece to move through the regulatory process.

In the absence of immediate federal action, a ripple effect is happening at the state level where states are mimicking each other on PFAS legislative or regulatory efforts.  This aggressive approach across the country is being seen particularly for drinking water sources (e.g., Vermont and New Jersey), but also where states are beginning to ask municipal utilities to voluntarily sample or establishing screening levels for PFAS in wastewater effluent and biosolids (e.g., Michigan, Maine, and Wisconsin).

The municipal clean water community supports source reduction and pollution prevention in the case of PFAS, just as it has with other chemicals in the past. Controlling and reducing the prevalence of those PFAS that are of known significant concern must also be addressed through federal laws and regulations that prevent their use in commerce and/or release to the environment. Those who manufacture these chemicals should be responsible for any needed remediation and the ultimate elimination of PFAS from uses that pose a threat to the environment.

In addition, greater attention to evidence-based science and the development of thorough risk assessments in needed to determine appropriate human health and environmental protection thresholds. It is equally important to identify the actual sources of PFAS and mitigate these chemicals from entering water resources in the first place through proper statutory and regulatory authority. As consumers buy and use PFAS-containing goods, there must be an understanding that the day-to-day contact with these materials is also a proximate source of exposure and contributor to PFAS in the environment.

Legislative Developments and NACWA Advocacy

Over the past year, Congress has introduced and worked aggressively to advance numerous proposals to address PFAS concerns. Dozens of individual pieces of legislation have been introduced, and Congress is working to pass several significant bills. NACWA’s is focused on ensuring Congress is informed about how these proposals could impact the clean water sector and is working to ensure that any final legislation is workable for utilities and advances the goals of clean and safe water.

In June 2019, the Senate advanced a bipartisan PFAS legislative package out of Committee. This PFAS package was then was attached to the Senate’s National Defense Authorization Act (NDAA) and subsequently passed by the entire Senate in July. The NDAA is considered a “must pass” bill and Senate leaders felt it could be the quickest path to getting PFAS legislation through Congress.

The Senate bill requires EPA to set a Maximum Contaminant Level for drinking water and provides monitoring assistance for water systems, requires tracking of PFAS by the US Geological Survey, and mandates reporting of PFAS discharges through Toxic Release Inventory reporting, among other requirements. 

But importantly for the public clean water community, the bill does not automatically designate PFAS as a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA – also knows as Superfund) nor as a toxic pollutant under the Clean Water Act (CWA). EPA is able, of course, to continue its risk analysis and determine PFAS should designated on either list.

However, the House of Representatives did not go through regular order and consider PFAS legislation in Committee. Instead, several significant PFAS provisions were added as amendments to the House’s NDAA bill just before the House NDAA bill was voted on and passed.

NACWA has significant concerns with two of these provisions. One amendment, offered by Rep. Chris Pappas (D-NH), would add all PFAS to the Clean Water Act (CWA) toxic pollutants list and require EPA to develop CWA effluent limitations and pretreatment standards for PFAS by January 1st, 2022. The other amendment, led by Reps. Dingell (D-MI) and Dan Kildee (D-MI), would trigger liability for all PFAS chemicals under CERCLA as hazardous substances, which is aimed to help expedite cleanup of highly contaminated sites – but which could, as drafted, create liability for POTWs that receive PFAS-containing influent and ultimately dispose of PFAS-containing biosolids.

NACWA, the Water Environment Federation (WEF) and others in the water sector worked hard during consideration of these amendments by the House to outline their unintended consequences on public clean water utilities, especially when there is not enough scientific evidence yet to determine their actual risk to public health from biosolids and wastewater effluent. Unfortunately, both amendments passed by a voice vote and were included in the final House passed NDAA bill. The House and Senate are now working in Fall 2019 to conference these two versions of the NDAA bill and PFAS provisions.

NACWA remains closely engaged with Congress and urges our utility members to be active on this issue – please see the NACWA Resources section for a template letter which utilities are urged to send to their Members of Congress.  There is also a template op-ed that utilities can use with their local media.

NACWA Resources

  • A Clean Water Utility's Guide to Considering Source Identification, Pretreatment, and Sampling Protocols for PFAS (November 25, 2019)
  • National PFAS Fact Sheet developed by PFAS receivers (November 1, 2019) 
  • NACWA/WEF template letter for member outreach to Congress (August 16, 2019)
  • NACWA template opinion editorial for use with local press (August 16, 2019)
  • NACWA legal considerations on CERCLA liability
  • Hot Topics Webinar – The PFAS Tsunami: A Regulatory, Legislative, & Legal Dive into the Current Wave of Issues Facing the Clean Water CommunityWebinar Slides *Full webinar recording available upon request (June 11, 2019)
  • NACWA Statement for the Record – U.S. Senate Environment and Public Works Committee Hearing (May 21, 2019)
  • NACWA Communication Committee meeting – Crisis Communications Strategy for PFAS: The Emerging Public IssueAudio Recording (May 1, 2019)
  • NACWA media talking points on biosolids and PFAS
  • 2019 National Water Policy Fly-In – One-Page Primer/Fact Sheet (April 10, 2019)
  • NACWA Comments on EPA Request for Input on PFAS (July 20, 2018)

NACWA Staff Contacts