EPA got a lot of press this week for its first ever "enforcement action" relating to the continuing discharge of the forever chemicals known as PFAS into the Ohio River in West Virginia. Many of you know that part of the world was the tinderbox for the firestorm of concern over PFAS.
As I've said many times, EPA deserves a lot of credit for the pace at which it has implemented its PFAS road map. One of the things EPA has done along the way, last July, was to dramatically decrease its health advisory levels for certain PFAS, including PFOA. The health advisory level now set for PFOA is .004 parts per trillion.
The agreement publicized this week seems to allow the holder of a Clean Water Act NPDES permit to continue to put into the Ohio River every day PFOA at a concentration of up to 18 parts per billion. The reason for the agreement was that the company was putting more PFAS in the River than EPA and the State of West Virginia had expressly permitted. The company has now agreed to take action to come into compliance with its permit, not to eliminate its discharge of PFAS.
Now I'm not going to overwhelm us with the math but, suffice it to say, 18 parts per billion is a lot more than .004 parts per trillion. Both concentrations are mind numbingly small. But that's the point. If it is unsafe, as EPA says it is, for drinking water to contain PFOA at a concentration any greater than the barely detectable .004 parts per trillion (The company that is the subject of EPA's "enforcement action" is part of the industry group that is separately challenging that EPA determination.), then how can it be the case, as the EPA Regional Administrator says in EPA's press release, that continuing to permit the discharge of up to 18 parts per billion of PFOA into the Ohio River "demonstrates that EPA will take action to safeguard public health and the environment from these dangerous contaminants"?
I don't mean to suggest that EPA yet has the legal authority to do anything more than what it has done in this case. But it likely will soon. And I expect that then permits authorizing the discharge of PFAS into waters of the United States will be a thing of the past. But the fact that EPA is saying that that a given concentration of a thing in water is dangerous and at the same time permitting the continuing discharge of that thing at much higher concentrations is something EPA should take the time to explain because we're not going to be free of PFAS anytime soon and the public needs to better understand the real world implications of that.
This is the first EPA Clean Water Act enforcement action ever taken to hold polluters accountable for discharging PFAS into the environment. PFAS are a group of man-made chemicals that have been manufactured and used in industry and consumer products since the 1940s. There are thousands of different PFAS chemicals, some of which have been more widely used and studied than others. According to the EPA order, PFAS levels in the discharges from the facility exceed levels that are set in the facility’s Clean Water Act permit. “Administrator Regan has directed EPA staff to use every enforcement tool at our disposal to compel manufacturers of PFAS to characterize, control, and clean up ongoing and past PFAS contamination,” said Acting Assistant Administrator Larry Starfield of EPA’s Office of Enforcement and Compliance Assurance.
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