Last
December, the Massachusetts Department of Environmental Protection (“MassDEP”) announced
final as well as proposed regulations to address Per- and Polyfluoroalkyl Substances
or “PFAS”, a
Numbering
in the thousands with many created over 50 years ago, PFAS are water soluble, extremely
stable and persistent, so do not fully degrade.
These properties make them popular for use in a wide variety of
products, such as water repellent fabrics, non-stick coatings, consumer
products, and fire-fighting foam.
Studies
show, however, that exposure to some PFAS at elevated levels may cause a
variety of health issues, including development effects on fetuses and infants,
effects on the thyroid, liver, kidneys, certain hormones and the immune
system. Certain PFAS have been
discovered to be quite toxic even at very low levels. According to MassDEP’s website, scientists
and regulators are still working to study and better understand the health
risks posed by exposures to PFAS.
Recently,
PFAS have been discovered in public drinking water supplies in at least fourteen
different communities throughout Massachusetts.
To
address PFAS, MassDEP is promulgating final regulations in its waste clean-up
program and issuing proposed regulations in its public drinking water program.
As
of December 27, 2019, parties responsible for cleaning up contaminated waste
sites in Massachusetts will have to clean up groundwater that could be used as
drinking water to meet a new standard in the Massachusetts Contingency Plan or
“MCP” (310 CMR 40.000) of 20 parts per trillion (ppt) for the sum of six PFAS
compounds.
There
are also new MCP standards for the clean-up of soils, with specific standards
for each of the six PFAS.
These
PFAS are perfluorodecanoic acid (“PFDA”), perfluoroheptanoic acid (“PFHpA”),
perfluorohexane sulfonic acid (“PFHxS”), perfluorononanoic acid (“PFNA”),
perfluorooctanesulfonic acid (“PFOS”), and perfluorooctanoic acid (“PFOA”).
Wishing
to coordinate efforts, MassDEP’s drinking water program is proposing new
drinking water standards on December 27, 2019 for the same six PFAS compounds. MassDEP proposes setting a Maximum Contaminant
Level (MCL) for drinking water of the sum of 20 parts per trillion (ppt) for these
six PFAS compounds. Presently, there is no Federal MCL for PFAS, only an EPA
health advisory for PFOA and PFOS of 70 ppt.
Water
suppliers will have to collect sample for PFAS and report to MassDEP. Depending on the level of PFAS found, the
water supplier may have to meet additional testing, monitoring, and reporting
requirements. The implementation of
these new drinking water regulations would be staggered, based on the
population served and type of system.
Public
hearings on these draft drinking water regulations (310 CMR 22.00) will be held
throughout the state beginning in early January 2020. More information about these proposed
regulations are available on MassDEP’s website.
A
senior associate at McGregor & Legere, P.C., Nathaniel Stevens handles a
broad range of environmental and land use matters, from administrative law to
litigation. He has helped clients with environmental issues including
permitting, development, contamination, transactions, conservation, real estate
restrictions, underground tanks, water supply, water pollution, subdivision
control, tidelands licensing, Boston and state zoning, coastal and inland
wetlands, stormwater, air pollution, and energy facility siting. He can be contacted at NStevens@mcgregorlaw.com.
