July 22, 2019

July 22, 2019

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Environmental Groups Petition for a Strict PFAS Drinking Water Standard in Massachusetts

MassDEP will decide on January 28 whether to establish a strict drinking water standard for per- and polyfluoroalkyl substances, known as PFAS, and promulgate further regulations for the identification and remediation of PFAS in drinking water in response to a petition from Conservation Law Foundation and Toxics Action Center. The October 25, 2018, Massachusetts petition was concurrent with similar petitions to the other New England states. The New Hampshire Department of Environmental Services recently rejected the petition, and the remaining states have not issued a determination.

In response to the petition, MassDEP opened a public comment period and held a public meeting on January 16, 2019. MassDEP has a deadline of January 28, 2019, to decide whether the petition and related public comments adequately present a need for new regulations. If MassDEP decides to draft new regulations, written comments will be solicited and the agency must provide the public a notice of any public hearing on the proposed rulemaking at least 21 days in advance.

What does the Petition Seek?

The petition urges MassDEP to adopt, as an immediate but interim measure, “a drinking water standard that protects the residents of Massachusetts from exposure to all PFAS compounds”; specifically, Vermont’s 20 parts per trillion (ppt) standard for the sum of five of the PFAS compounds (commonly referred to as PFOA, PFOS, PFHpA, PFNA, and PFHxS). As a long-term measure, the petition urges MassDEP to adopt either (a) a performance-based standard that requires a specific type of treatment that would, in the petitioners’ view, protect the public from unsafe levels of the PFAS class in general; or (b) a maximum contaminant level (MCL) for PFAS as a class or for each individual PFAS chemical.  In the public meeting, Conservation Law Foundation stated that it believes that the maximum contaminant level should be 1 ppt for the PFAS class. The petitioners are also asking MassDEP to begin sampling public water supplies across the state.

Comments from the Public

Comments at the public meeting were mixed. Several elected officials and residents of towns like Westfield and Hyannis spoke in favor of the petition, noting the toxicity of PFAS and its effect on their communities. However, several public works representatives cautioned MassDEP against prescribing standard treatment methods or setting an MCL before further investigation of PFAS sources and levels, and some residents raised concerns about the potential cost of such treatment.  Public comments appeared to be split as to whether MassDEP should treat PFAS as a class or regulate each compound individually. There did not appear to be a clear consensus regarding any of the petition’s recommendations.

Insight from MassDEP

MassDEP’s presentation was conducted by Mark Smith (Director, Office of Research and Standards), Douglas Fine (Assistant Commissioner for Water Resources), and Paul Locke (Assistant Commissioner for Waste Site Cleanup). The presentation reminded the public that the Office of Research and Standards published a guideline of 70 ppt for the sum of PFOA, PFOS, PFHpA, PFNA, and PFHxS in drinking water.  MassDEP discussed its efforts relating to identified contamination of public drinking water systems in Hyannis, Mashpee, Westfield, Ayer, and Devens. MassDEP told attendees that aqueous film forming foam, referred to as AFFF, “appears to the primary source” of PFAS contamination in the state.

MassDEP also highlighted a few ongoing efforts, including requiring PFAS testing of all proposed new public water sources and requesting voluntary analysis of bottled water from all companies supplying bottled water to the state.  In addition, MassDEP stated that wastewater residuals to be land-applied in Massachusetts will require analysis for PFAS contamination.

MassDEP’s presentation included mention of a proposal for Massachusetts Contingency Plan cleanup standards for PFAS in soil and groundwater. The MassDEP representative stated that draft regulations will arrive in spring 2019. The regulatory proposal will solicit comments on all aspects of PFAS including which specific compounds should be regulated, toxicity values, and exposure assumptions. MassDEP noted that comments on the groundwater standard will inform subsequent drinking water regulations.

What the future holds is unclear, except it will include more regulation of PFAS in drinking water and at contaminated sites. MassDEP’s attention to the PFAS issue is indicative of what is happening at the federal level. In 2016, U.S. EPA announced a voluntary health advisory level for PFAS of 70 ppt.  More recently, the Ohio Environmental Council petitioned EPA in 2018 to promulgate PFAS regulations under the Clean Water Act and the Safe Drinking Water Act. Currently, the EPA is developing a PFAS Management Plan to address the PFAS class. While the plan is likely delayed because of the government shutdown, rumors suggest it will arrive soon.

© 2019 Beveridge & Diamond PC

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About this Author

Jeanine LG Grachuk, Environmental Litigation Lawye, Beveridge Diamond, Energy Permitting Attorney
Principal

Jeanine Grachuk’s practice includes environmental compliance counseling, environmental permitting of energy and brownfields redevelopment projects, and advice on managing environmental risk in complex transactions such as through environmental risk insurance.  Ms. Grachuk has experience with environmental issues arising within a variety of industrial sectors, including power generation, chemical production, and solid waste disposal. 

781-416-5713
Dylan King, Beveridge Diamond Law Firm, Boston, Environmental Law Litigation Attorney
Associate

Dylan maintains a diverse environmental litigation and regulatory practice, working with clients nationwide across industrial sectors. He has developed experience with solid waste facility siting, pipeline and hazardous material transportation regulations, site contamination litigation, and local zoning matters. Dylan joined the firm following his graduation from Vermont Law School with a certificate in Energy Law.

During his time at Vermont Law School, Dylan worked with the Vermont Law School Energy Clinic, helping clients develop solar projects. The clinic has a particular focus on building legal models that support and educate communities pursuing solar power ownership. He also acted as the Head Notes Editor for the Vermont Law Review and was selected to work as a Dean’s Fellow in the legal writing department, where he taught weekly legal writing seminars. In addition, Dylan served for two years as a Civil Procedure teaching assistant. In his first summer of law school, Dylan interned as a law clerk in the United States Attorney’s Office, District of Maine, in the criminal and appellate divisions.

781-416-5755