Tuesday, March 17, 2020

Massachusetts Announces Waste Site Clean Up as well as Drinking Water Standards for Six PFAS “Forever” Chemical Compounds

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
family of man-made chemicals known as the “forever chemicals” due to their persistence in the environment.  Only a handful of other states are regulating PFAS.

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.