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MassDEP Proposes Stringent MCL and Finalizes Cleanup Standards for Six PFAS

On December 13, 2019, the Massachusetts Department of Environmental Protection (MassDEP) announced two significant actions addressing per- and polyfluoroalkyl substances (PFAS) in Massachusetts. First, MassDEP is proposing regulations that will set the maximum contaminant level (MCL) for drinking water at 20 parts per trillion (ppt) for six PFAS, combined. MassDEP’s proposed MCL is among the lowest proposed or adopted by any state. Second, MassDEP is promulgating final regulations that set the groundwater cleanup standard at the same level: 20 ppt for six PFAS, combined. This concentration is significantly lower than the federal health advisory level of 70 ppt for only two PFAS, combined. Both of these regulatory actions became available on MassDEP’s web site on December 13, 2019, and will be formally published in the Massachusetts Register on December 27, 2019. 

Massachusetts is regulating six PFAS, listed below.

  • Perfluorooctanesulfonic acid (PFOS)

  • Perfluorooctanoic acid (PFOA)

  • Perfluorodecanoic acid (PFDA)

  • Perfluoroheptanoic acid (PFHpA)

  • Perfluorohexane sulfonic acid (PFHxS)

  • Perfluorononanoic acid (PFNA)

These six compounds were selected by MassDEP’s Office of Research and Standards. A technical document supporting this selection is expected but has not yet been made available on MassDEP’s website.

The Proposed Drinking Water MCL

MassDEP’s proposed MCL of 20 ppt for the six PFAS (combined) identified above would apply to all Community Water Systems (e.g., cities and towns) and Non-Transient Non-Community Systems (e.g., schools and larger businesses). These systems would be required to conduct monitoring for PFAS on a quarterly basis for one year, followed by less frequent monitoring, if warranted. Other provisions include required actions when PFAS is detected, monitoring protocols, and language on PFAS health effects for Consumer Confidence Reports. 

Transient Non-Community systems would be required to take one sample and analyze it for PFAS. The results must be reported to MassDEP. 

Implementation of the rule will be staggered as follows:

System size or type

Initiate monitoring by

Impact

50,000 consumers
or more

April 1, 2020

20 systems serving
4.3 million people

More than
10,000 consumers

October 1, 2020

106 systems serving
2.6 million people

10,000 consumers
or less

October 1, 2021

569 systems serving
708,000 people

All transient
non-community

September 30, 2022

Not indicated

Final Changes to State Cleanup Regulations

Effective December 27, 2019, MassDEP is amending the state cleanup program, known as the Massachusetts Contingency Plan (MCP), to include final standards for six PFAS. MassDEP issued these regulatory changes after receiving 51 comments during the public comment period. The major change made in response to these comments was to increase (make less strict) the soil standards based on studies conducted in Vermont that suggest that background levels of PFAS are higher than MassDEP initially considered. A more detailed response-to-comments document is expected but has not yet been made available by MassDEP.

Reportable Quantities and Reportable Concentrations

The MCP revisions set reportable quantities and reportable concentrations for six PFAS for groundwater and soil, which trigger an obligation to report the release to the state. The standards are:

 

Reportable
quantity (lb)

GW-1 (mg/L)
Potential drinking
water area

GW-2 (mg/L)
All other
groundwater

S1 (mg/kg)
Accessible
soil

S2 (mg/kg)
Other soils

Combined total

PFOA

PFOS

PFDA

PFHxS

PFNA

PFHpA

See individual
compounds below

0.00002

See individual
compounds below

See individual
compounds below

See individual
compounds below

1

See above

40

0.00072

0.4

1

See above

0.5

0.002

0.4

1

See above

40

0.0003

0.4

1

See above

0.5

0.0003

0.4

1

See above

40

0.00032

0.4

1

See above

40

0.0005

0.4

Groundwater Cleanup Standards

The MCP revisions set “Method 1” cleanup standards for the six PFAS for groundwater. Method 1 standards can be used at any site by comparing exposure point concentrations to the standard. The final rule sets the following standards:

 

GW-1 (ppb)
Applies to potential
drinking water areas

GW-2 (ppb)
Applies to areas
near structures

GW-3 (ppb)
Applies to all
groundwater in MA

Combined total

PFOA

PFOS

PFDA

PFHxS

PFNA

PFHpA

0.02

See individual
compounds below

See individual
compounds below

See above

N/A

40,000

See above

N/A

500

See above

N/A

40,000

See above

N/A

500

See above

N/A

40,000

See above

N/A

40,000

Soil Cleanup Standards

The MCP revisions also set Method 1 cleanup standards for the six PFAS for soil. The standards differentiate between soil that is more accessible to people (e.g., S-1) and soil that is less accessible (e.g., S-3), and take into account potential impacts to groundwater. The newly established standards for the most accessible soils, S-1 are:

 

S-1 Soil (ppm) in areas that are:

 

GW-1

GW-2

GW-3

PFOA

PFOS

PFDA

PFHxS

PFNA

PFHpA

0.00072

0.3

0.3

0.002

0.3

0.3

0.0003

0.3

0.3

0.0003

0.3

0.3

0.00032

0.3

0.3

0.0005

0.3

0.3

According to MassDEP, a technical support document for the final rule will be made available on or before December 27, 2019.

The Final Word

The drinking water MCL and the groundwater cleanup standard for groundwater that may be used as drinking water are necessarily linked. MassDEP has informally stated that it expects the MCL and the GW-1 cleanup standard to be the same. As a result, if the process of developing an MCL results in a different standard than the 20 ppt level that has been proposed, the cleanup standard will likely be reopened and changed to meet that new level.

The comment period for the drinking water MCL opens on December 27, 2019, and closes at 5:00 pm on Friday, February 28, 2020. MassDEP will be holding five public hearings at different locations across the state in January 2020 to seek additional comment.

© 2020 Beveridge & Diamond PC National Law Review, Volume IX, Number 351

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About this Author

Nessa Coppinger Environmental Attorney Beveridge & Diamond Washington, DC
Principal

Nessa focuses her practice on complex environmental litigation, including multi-district litigation and multi-party product liability.

Clients rely on Nessa to help them solve their most complicated, expensive, and intractable problems. She has led significant trial court and appellate matters, including federal appeals, to a successful conclusion. She has experience with a range of high-stakes litigation, including mass environmental claims, coordinated litigation with federal government entities, class action, and single-party litigation. Nessa also counsels on and litigates...

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Jeanine L.G. Grachuk Environmental Attorney Beveridge & Diamond Boston, MA
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Jeanine is a top-rated Massachusetts environmental lawyer with extensive experience in air, water, and waste issues arising within a variety of industrial sectors.

Solving puzzles is what Jeanine enjoys most about environmental law. She likes taking a complicated set of facts hidden in environmental reports and unpacking the information until the key legal issues are revealed.

When providing advice to clients, Jeanine listens for what they need—whether it’s a quick and actionable answer, a trusted counselor, or a gut check—in addition to their legal questions. She also approaches the practice of law as a marathon, not a sprint, since experience has taught her that a fresh challenge always awaits unseen over the horizon.

Trusted Counselor

Jeanine’s practice focuses on environmental compliance counseling, environmental permitting of energy and brownfields redevelopment projects, and managing environmental risk in complex transactions, such as through environmental insurance products. She advises, counsels, and defends clients in industries including power generation, chemical production, and solid waste disposal, among others.

Jeanine’s career highlights include working with a client to develop a path to closure under Massachusetts cleanup law for a historic release of trichloroethylene (TCE) at a former manufacturing site redeveloped for residential use. She also negotiated with the Massachusetts Attorney General the first-ever amendment of a Covenant Not to Sue to include a parcel of land being acquired by a client.

Jeanine clerked at the Connecticut Supreme Court for former Chief Justice Ellen A. Peters and has lectured on Massachusetts cleanup law and environmental risk insurance.

She is a member of the Board of Directors of the Licensed Site Professionals Association (LSP), an organization dedicated to professionals who investigate and remediate contaminated properties in Massachusetts. She is the first lawyer to serve on its board.

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Dylan J. King Environmental Litigation Attorney Beveridge & Diamond Boston, MA
Associate

Dylan uses his legal and business skills to help clients solve problems.

He 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...

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