A single drop in enough water to fill 20 Olympic-sized swimming pools seems insignificant, but when it comes to regulating per- and poly-fluoroalkyl substances (PFAS) in drinking water, every drop counts. As communities across the nation await the closing chapters of the Environmental Protection Agency’s (EPA) PFAS Strategic Roadmap, which is expected to include stringent requirements for remediation of these harmful contaminants in drinking water, some states are also taking a proactive stance toward additional regulations for PFAS in ways that will have an additional economic impact on many communities, including restrictions or even outright bans on PFAS in wastewater treatment plant discharges.
Regulators’ concerns over PFAS are not unwarranted. Found in a wide variety of consumer and commercial products, as well as discharges from manufacturing facilities, PFAS are proven to have harmful effects on humans and the environment. As public awareness of these contaminants grows, regulatory scrutiny has intensified on both the state and federal levels.
New York is one of the states stepping to the forefront of this environmental challenge. With its abundant drinking water resources and complex history of industrial activity, the state has already taken a progressive approach to PFAS and other man-made contaminants, adopting stringent maximum contaminant levels (MCLs) for PFAS in drinking water, including PFOA and PFOS, as well as another contaminant that enters water supplies from consumer and commercial products, 1,4-dioxane.
The regulatory focus on PFAS contamination is not limited to drinking water. In 2023, just months after EPA announced plans for its own studies of PFAS in wastewater, including potential limits on discharges into the nation’s waterways, Senator Rachel May (D-Onondaga, Cayuga) advanced her PFAS Discharge Disclosure Act (S227B) through the Environmental Conservation Committee. This first-of-its-kind bill in New York State would require publicly owned treatment facilities and entities that discharge industrial waste into state waterways to disclose the measurement of PFAS chemicals found in the discharge.
If it progresses, this legislation will introduce a nation-leading testing protocol for a broad range of permit holders who are presently authorized to discharge pollutants into the state’s water bodies, marking the state’s initial step toward understanding the extent of PFAS contaminants being released into its waters. Although there are no existing limits on these PFAS discharges, this move, aligned with the recent establishment of state drinking water norms, aims to bridge the significant gap in data essential for comprehending and regulating the pollution caused by these “forever chemicals.” The bill also sets up a unified and cooperative framework for data sharing, ensuring that water quality information is readily available to all stakeholders committed to preserving water resources.
New York is not alone in these approaches. Other states are starting to look into the management of biosolids that may be contaminated with PFAS due to discharges into sewer systems from businesses and households, including outright bans on the beneficial reuse of biosolids, which often includes the spread of PFAS-laden sludge and sludge-derived compost as fertilizer. Although these measures are intended to protect water supplies, farmland, and other resources from PFAS, they pose a challenge to publicly owned treatment works (POTW), whose sewage treatment technology is currently not designed to remove PFAS from wastewater.
As regulatory pressure continues to rise, PFAS may also be designated hazardous substances or constituents by the EPA or state environmental agencies. These designations would allow EPA, state regulators, and private citizens to hold wastewater treatment plants and other dischargers legally responsible for the PFAS contamination coming from their facilities, even if they had no role in creating it. Recognizing that POTWs are not producers of PFAS chemicals, the EPA has announced it will instead focus its enforcement efforts on manufacturers. But this is an unofficial policy that could change at any time, and it and does not exempt POTWs from being pursued by private citizens and state governments for the costs of cleaning up PFAS released in treated wastewater and biosolids. Without further legislative action, these hazardous materials designations will force POTWs to seek different disposal solutions for their biosolids, significantly impacting already high treatment costs—not to mention the potential legal liability for downstream contamination that could further disrupt utility and city budgets.
With POTWs potentially gearing up to remove PFAS, and their possible designation as hazardous substances, we are witnessing a shift in accountability, from finger-pointing to taking responsibility for environmental stewardship. Still, questions loom: Even with the historic federal support coming from the Infrastructure Investment and Jobs Act, which includes $22 billion dedicated to clean water funding, will the funds be enough to cover the cost of new treatment solutions?
That’s unlikely. As with any environmental concern, there’s no one-size-fits-all financial solution, and utilities need to consider a range of cost-shifting and cost-recovery strategies. Holding the manufacturers of the products that historically contained PFAS legally responsible for the costs of treatment has proven to be an effective and responsible course of action. In fact, following the announcement of EPA’s draft regulations effectively banning PFAS in drinking water—which followed limits already imposed by many states–hundreds of municipalities filed lawsuits against PFAS manufacturers like 3M, DuPont, and others, resulting in billions of dollars in settlements, awaiting final court approval, to offset the resulting treatment costs.
For many POTWs, a similar strategy may be essential in mitigating the steep costs of cleaning up PFAS in wastewater systems.
Ultimately, a well-rounded strategy that includes litigation can offer a buffer against the volatility of regulatory landscapes without placing an undue burden on ratepayers.
Ken Sansone