April 25, 2019

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MassDEP to Focus on Regulating Only Specific PFAS Compounds

MassDEP will develop a drinking water maximum contaminant level (MCL) for per- and polyfluoroalkyl substances, known as PFAS, in response to the Conservation Law Foundation’s October 25, 2018 petition, which we reported on earlier. While MassDEP largely rejected the petition’s specific requests, including a call for an emergency interim MCL, MassDEP’s January 28, 2019 response instead outlined a broader, longer-term plan to address PFAS substances in drinking water.

Although MassDEP will establish a drinking water MCL for PFAS, it will not do so for PFAS as a class, as suggested by some stakeholders. Instead, MassDEP will focus on a subset of PFAS compounds that are a threat to human health, are detectable, and can be treated with available technology. MassDEP identified these compounds as PFOA, PFOS, PFHxS, PFHpA, and PFNA. In explaining its decision to narrow the regulatory scope, MassDEP cited the significant expense of treating drinking water for PFAS contamination, how little is known about the vast majority of the more than 3,000 PFAS compounds, and the limited treatment technologies available.

MassDEP’s response also acknowledged a plan to develop reportable concentrations and cleanup standards for PFAS under the Massachusetts Contingency Plan. MassDEP will work with the Waste Site Cleanup Advisory Committee to develop a regulatory approach, as well as solicit public comment.

The petition, and several stakeholders at the public meeting on January 18, 2019, requested MassDEP begin statewide testing for PFAS contamination in drinking water. In its response, MassDEP promised to develop a “targeted sampling program” to test public water sources near known or potential sources of PFAS contamination. The public will be informed of future testing via online posts.

MassDEP noted that its approach to developing the new PFAS regulations will evolve. The department committed to engaging stakeholders and monitoring the growth of PFAS-related scientific knowledge. MassDEP did not provide a timeline for the drinking water MCL rulemaking process.

Regulation of PFAS was also in the national news this week. According to multiple news outlets, the U.S. EPA has decided not to regulate PFOA and PFOS via the Safe Drinking Water Act. There is no national MCL for any other compound in the PFAS class either. With no national standard on the horizon and growing public concern, more states may decide to pursue their own regulatory solutions.

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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