Category: Newsletter

PFAS: FROM “EMERGING CONTAMINANTS” TO “FOREVER CHEMICALS”

There is growing evidence about the harmful effects from Per- and Polyfluoroalkyl (“PFAS”) substances in our drinking water supplies.  The urgency for decisive and prompt action to treat PFAS in drinking water to below evolving cleanup standards and maximum contaminant levels is now second only to the public health challenges posed by the coronavirus pandemic.  What to do about PFAS dominates the agendas of federal and state regulators, municipal boards, public water suppliers and consumers.  MassDEP set PFAS cleanup standards under the Massachusetts Contingency Plan (“MCP”) in December 2019, released an updated Office of Research and Standards Guideline (“ORSG”) for PFAS in drinking water in January 2020, and will promulgate a Maximum Contaminant Level for PFAS compounds in drinking water by mid-2020 – all limits to be 20 parts per trillion (“ppt.”) for the aggregate of six PFAS compounds.  There is constant news coverage on NPR and TV, and in newspapers, magazines and books.  A 2018 investigative documentary film, The Devil We Know, reported PFAS can be found in the blood stream of nearly every American.  Dark Waters is a three-star Hollywood conspiracy thriller about Rob Bilott’s crusade against Du Pont, a manufacturer of PFOA.  Lawsuits are proliferating to recover cleanup costs and damages, and to fund health studies, and by manufacturers to challenge state regulations.  PFAS has spawned hundreds of conferences and seminars on technical, forensic and litigation issues (now virtual events due to the virus). 

Our law firm has participated in the emergence of PFAS since the UCMR3 results became public in 2014.  We advised Public Water Systems (“PWS”), local governments and private clients in “real time” as the contaminant escaped from the “PFAS Zone” (a/k/a Legal Limbo) of conflicting, non-enforceable federal and state guidelines, the lack of scientific consensus on human health effects, and the “encouragement” of MassDEP for PWS to take immediate steps to monitor and plan for PFAS treatment systems, even in advance of MassDEP promulgating MCP cleanup and an MCL standards for PFAS in drinking water. 

Our work includes:

  • evaluating the implications of the PFAS results from the UCMR3 and UCMR4 sampling events;
  • advising on “voluntary” compliance with MassDEP’s non-enforceable ORSG health advisory of 70 ppt and now 20 ppt for PFAS concentrations in drinking water;
  • recruiting water supply engineers to work with PWS to monitor groundwater, and to plan for the design, permitting, procurement and installation of cutting-edge treatment systems, such as granulated activated carbon (GAC) and ion exchange resin;
  • consulting and negotiating with MassDEP, PRPs and treatment system vendors to identify potential treatment systems, to pre-approve, procure and fast-track the permitting and construction of treatment systems; and to provide an interim bottled water supply for town residents and schools;
  • commencing cost recovery and common law claims against PRPs;
  • searching for additional PFAS sources and PRPs; and,
  • advising clients on risk communication to consumers, media interactions, and funding for expensive monitoring and treatment systems.

We also advise companies during ASTM due diligence assessments on the impacts of PFAS on proposed acquisitions, and on MCP investigations at target sites.  John Shea lectured on “PFAS Liability and Funding Sources” to the New England Water Works Association (“NEWWA”) and Peter Durning on “Litigation Issues related to PFAS in Drinking Water” to the Massachusetts Water Works Association (“MWWA”).  John also worked on the MWWA’s comments on the proposed MCP and MCL standards.

Background

PFAS were created in the 1930s and used widely since the 1940s in commercial and industrial products from the 1950s because of their fire resistance and oil, grease and water repellant properties.  There are over 4,000 PFAS synthetic chemicals with carbon-fluorine chains.  The primary regulatory focus is on the long-chain chemicals:  PFOS, PFOA, PFHxS, PFNA, PFHpA and PFDA.  Industrial uses included: Firefighting Aqueous Film-Forming Foam, medical devices, textiles, furniture, clothing, rubber, plastics and paper.  Commercial uses included: non-stick cookware, candy wrappers, microwave popcorn bags, pizza boxes, shampoo, dental floss, cosmetics, carpets, fast food containers, rain coats, and vehicle waxes.  Manufacturers ceased PFAS production in favor of new chemicals with unknown health risks, such as Gen-X.  Imported products still contain PFAS.

PFAS became an “emerging contaminant:” disclosed in litigation against manufacturers in the early 2000s, EPA’s 2009 provisional health advisory of 200 ppt for PFOS and 400 ppt for PFOA issued “in response to an urgent or rapidly developing situation,” EPA’s 2012 Unregulated Contaminants Monitoring Rule (UCMR3) testing of PWS for PFOA and PFOS, and the 2013 C8 Science Panel Study funded by a 2005 settlement.  Based on the growing number of recent studies on PFAS by EPA, state agencies, universities, and others, PFAS have fully “emerged” and become “forever chemicals” due to their chemistry, persistence in the environment, resistance to breakdown by microbes and light, and solubility and mobility in water.  PFAS are in soil, water and even air, are absorbed by plants and animals through the food chain, and bioaccumulate in blood and tissue, which can result in toxic threshold concentrations increasing the risk of health effects.  Human exposure is primarily through drinking water and food.  PFAS are distributed through the body by plasma and into the liver, kidneys, and placenta.  PFAS are eliminated by urine, feces and breast milk over unknown years.  Studies indicate that exposure to elevated levels of certain PFAS may cause development issues in fetuses and infants, affect the thyroid, liver, kidneys and immune systems, and even pose a risk of cancer.  Sources of PFAS include manufacturing sites, firefighting foam, spills and air deposition, and landfills where releases leach from soils into groundwater or flow into surface water.

EPA

EPA’s process for setting Maximum Contaminant Levels (MCLs) in drinking water for specific chemicals begins with testing for candidate contaminants not currently regulated but likely to pose risks to public health and the environment.  In 2012, under EPA’s UCMR3 testing, PFOA and PFOS were among 30 contaminants tested by 5,000 PWS serving 80% of the US population.  In Massachusetts, 158 PWS serving more than 10,000 persons and 13 smaller systems had nine detections above EPA’s reporting limits (20 ppt for PFOA and 40 ppt for PFOS).  Since then, additional testing found PFAS above and below the old MassDEP ORSG advisory of 70 ppt.  Twelve PWS exceeded the proposed 20 ppt standard.  When varying but significant concentrations were detected in UCMR3, in 2016 EPA issued a non-binding Health Advisory that PFOA and PFOS levels above 70 parts per trillion (ppt) pose a risk of birth defects, testicular and kidney cancer, and developmental problems. 

EPA released its PFAS Action Plan on February 14, 2019, which proposed technical assistance on PFAS testing, monitoring protocols on treatment and remediation technologies, and toxicity assessments for five additional PFAS, and adding PFOA and PFOS as hazardous substances under CERCLA.  On June 10, 2019, EPA concluded public comment on the draft Interim Recommendations for Addressing Groundwater Contaminated with PFOA and PFOS, which will provide guidance for CERCLA and RCRA cleanups.  On November 22, 2019, EPA made available $4.8 million in funding for research on PFAS in agriculture.  On February 20, 2020, EPA proposed regulatory determinations for PFOS and PFOA, and seeks public comment on eight more contaminants on the UCMR4 candidate list.  EPA’s formal MCL rulemaking under the Safe Drinking Water Act takes at least 18 months, and by operation of law new MCLs are not effective for three years.  Some critics of the Plan see it as too slow and “kicking the can down the road.”  Perhaps motivated by the specter of Flint Michigan and by intense media coverage, States (NH, NJ, NY, MN, MI, CA, VT, CT, RI) are not waiting for Washington and are issuing their own MCLs and health advisories.

Massachusetts

EPA, the World Health Organization, and the States are developing health advisories, guidelines, goals and MCLs to address evidence that PFAS at very low concentrations represent a potential public health concern in sensitive populations.  Massachusetts has uniquely decided to use a three-pronged strategy to establish drinking water standards for PFAS: health advisories, an MCL, and cleanup standards under the MCP.  On October 25, 2018, the Conservation Law Foundation and Toxics Action Center filed a “Petition for Rulemaking to Establish a Treatment Technique Drinking Water Standard for PFAS” that advocated 20 ppt for five PFAS.  In its January 28, 2019 Response, MassDEP described its “game plan” to initiate multiple, transparent regulatory processes to address the potential risks posed by PFAS in drinking water.  Accordingly, MassDEP followed lengthy public processes of stakeholder meetings, public hearings and meetings, and public comment periods to adopt MCP and MCL standards.  Based upon review of scientific literature, assessments by other states, and public comments, MassDEP adopted total 20 ppt standard for the sum of six PFAS compounds.  In spite of criticisms about overly conservative decision-making based on limited epidemiological data, laboratory animal studies without a definitive connection with specific human diseases, the presence of PFAS in soil at background levels in excess of 20 ppt, and the application of uncertainty factors, MassDEP did not waiver from the very early proposed 20 ppt standard, and used the MCP process to “inform” (bootstrap) the MCL and ORSG processes.  In an abundance of caution, MassDEP has acted deliberately and decisively to require cleanups under the MCP to protect water supplies, and to require PWS to comply with a conservative MCL ensuring the delivery of clean and safe drinking water. 

Massachusetts Contingency Plan

On December 27, 2019, MassDEP finalized revisions to the MCP (310 CMR 40.000) for the sum of six PFAS compounds.  The MCP is the “cookbook” for Licensed Site Professionals (“LSP”) to assess and cleanup contaminated sites.  The PFAS revisions include: Reportable Concentrations (“RC”) in groundwater and soil and Reportable Quantities, Method 1 cleanup standards for groundwater and soil, Method 2 standards for soil, and Method 3 Upper Concentrations Limits for groundwater and soil.  The regulations provide a listing of toxicity information for performing a Method 3 risk characterization (Listed PFAS compounds are for the acid and anionic forms.).  The PFAS Sampling Guidance was revised on December 27, 2019 to reflect the new standards (described below). 

There were four public hearings and a public meeting, and 51 comments were submitted.  The majority of the testimony and comments focused on Reportable Concentrations and cleanup standards.  MWWA submitted a 13-page comment letter with expert toxicological reviews and the Michigan 2019 Health-Based Drinking Water Value Recommendations for PFAS.  MWWA argued that it is premature to be setting regulatory standards before “there is a better understanding of expected background levels and sources, and understanding of the extent of PFAS prevalence in the Commonwealth, and most importantly, a better understanding of the real potential human health impacts at the low levels that are being detected and potentially regulated in drinking water within Massachusetts.”

In the end, MassDEP retained its proposed groundwater RC and the RC GW-1 and GW-1 Method 1 standard of 20 ppt for the sum of six PFAS in order to protect current and potential drinking water sources.  Based on comments on the background levels of PFAS in soil, the RCS-1 RC and the S-1/GW1, S-2/GW-1, and S-3/GW-3 Method 1 soil standards were revised from 200 ppt to six chemical specific standards ranging from 300 to 2,000 ppt.

MassDEP recommends that LSPs should sample for PFAS in or near GW-1 areas where certain activities may have occurred: PFAS manufacturing facilities, textile manufacturing companies, landfills with uncontrolled leachate potentially containing PFAS, airports, crash sites and firefighting training areas where foam was used or stored, and metal plating and coating facilities.

ORSG

On January 27, 2020, MassDEP issued an updated Office of Research and Standards Guideline (“ORSG”) for drinking water of 20 ppt, individually, and the sum of the concentrations of six PFAS (PFOS, PFOA, PFHxS, PFNA, PFHpA, PFDA).  The updated ORSG replaces the June 8, 2018 guideline for drinking water of 70 ppt for five PFAS compounds.  The new guideline is based on a draft Toxicology Profile for PFAS by the ATSDR (2018), scientific assessments by other state agencies, input from the MassDEP Health Effects Advisory Committee, and public comments received on the draft MCP PFAS standards.  The lower drinking water standard of 20 ppt for the sum of six PFAS compounds presumably provides a greater degree of health protection to sensitive groups, including pregnant women, nursing mothers and infants.

The new ORSG and the updated Technical Support Document (December 26, 2019) can be found at: https://www.mass.gov/info-details/per-and-polyfluoroalkyl-substances-pfas#health-advisories-and-downloadable-fact-sheets-.

Maximum Contaminant Level

MassDEP has proposed revisions to the Massachusetts Drinking Water Regulations (310 CMR 22.00) to establish a Total PFAS MCL of 20 ppt for six PFAS contaminants: PFOS, PFOA, PFHxS, PFNA, PFHpA and PFDA for Public Water Systems (“PWS”).  The proposed regulation includes minimum reporting requirements, required actions when PFAS is detected, invalidation of sample results, determination of compliance, technologies for treating PFAS in water, monitoring schedules and protocols, and health effects information for Consumer Confidence Reports.  PWS serving more than 50,000 consumers (20 systems with 4.3 million consumers) must begin quarterly monitoring for one year by April 1, 2020, before the MCL is even finalized!  PWS with less than or equal to 50,000 but more than 10,000 consumers (106 systems with 2.6 million consumers) must begin monitoring by October 1, 2021.  For 569 systems serving 708,000 consumers, monitoring must begin by October 1, 2021.  Transient Non-Community Systems must collect a single sample by September 30, 2022.  This staggered schedule is proposed due to reflect the anticipated demand for laboratory services, and engineering design, procurement and construction of treatment systems.  The public comment period closed on February 28, 2020.  A final MCL is expected later this year.

MWWA submitted a 20-page comment letter with five appendices: Costs Incurred by PWS for PFAS (to date); a Summary of the DEP New Source Approval Process; a Treatment Planning, Design, Permitting and Construction Timeline; a Summary of the Interconnection Process; and a scientific paper, “Activation of human nuclear receptors by PFAS” from Toxicology in Vitro (2020).  MWWA presented many specific comments and several major recommendations:

  • MassDEP needs to understand the enormous financial impacts from the proposed MCL.
  • MassDEP should not act based on what other states are doing.
  • MassDEP should not apply an excessive conservative factor to a number not supported by sound science.
  • MassDEP should follow the EPA’s rigorous MCL process and implement standards only after the scientific merits have been methodically considered.

MWWA objects to an MCL of 20 ppt for the sum of six compounds because of different toxicity end points, uncertainty factors, reference doses, half-lives and bioaccumulation of each PFAS compound.  MassDEP should not use a cumulative approach and should develop compound-specific standards for each PFAS.  MWWA opposes treating values below the laboratory’s MRL as ½ the MRL.

Sampling and Testing

Did measuring to parts per trillion (“ppt”) originate with Steve Martin’s 1970s riff to “get really, really small,” or Richard Feyman’s musings on quantum particles?  One ppt is equivalent to one grain of sand in an Olympic size swimming pool, or the finding a single important second in the middle of 31,000 years!  Scientific advances in analytical equipment and new testing protocols allow the detection of PFAS at these extremely low levels.  Due to the presence of PFAS in equipment and products used to collect groundwater and drinking water samples (tubing, containers, tools), special protocols must be used to collect samples to prevent cross-contamination with PFAS.  MassDEP issued “Interim Guidance on Sampling and Analysis for PFAS at Disposal Sites Regulated under the Massachusetts Contingency Plan” on June 19, 2018 (updated on December 27, 2019), and “Field Sampling Guidelines for PFAS” using EPA Method 537 or 537.1” in January 2020.  Method 537.1 focusses on long-chain PFAS.  In December 2019, EPA announced a new validated Method 533 that focusses on “short chain” PFAS.  MassDEP offers PFAS sampling training to PWS in person or by video.

PWS and MassDEP discovered that there are not enough laboratories certified to test for PFAS using EPA Methods 533, 537 or 537.1.  Chemical and physical properties of PFAS prevent the use of GC/MS to measure PFAS concentrations.  The advanced testing instrument costs over $250,000.  As a result, there is a backlog of samples for testing.  As more sampling is performed at disposal sites under the MCP and under the proposed MCL, laboratory capacity will be further stressed and the costs for testing will likely increase.  MassDEP needs to certify more laboratories which invest in the technology with detection limits below 4 ppt.

Wastewater Discharges and Residuals

David Abel, the award-winning environmental journalist for the Boston Globe, exposed several troubling PFAS issues involving wastewater treatment plants (“WWTP”).  In November 2019, he reported on the permitted disposal for 100,000 gallons per day of PFAS laden runoff from a NH landfill into the Lowell WWTP, which then was discharged under an NPDES permit into the Merrimack River, a source of drinking water for more than 500,000 people.  His article and pressure from environmental advocates and lawmakers caused the Lowell WWTP to suspend its contract with the landfill.  In a December 1, 2019 article, David explored how sewage sludge from Deer Island that is converted into fertilizer contained more than 18,000 ppt of three PFAS chemicals.  Maine has imposed PFAS limits in sludge fertilizer after 1420 ppt was found in milk from an Arundel farm.  MassDEP approves the land application of sludge from WWTP based on chemical quality and treatment to reduce pathogens.  There are no standards for PFAS in bio-solid fertilizers that can leach into groundwater, get absorbed by plants and ingested by livestock.  MassDEP is now requiring PFAS testing in renewed or new applications for use of sludge as bio-solid fertilizers, and may set PFAS standards.  Ironically, dumping WWTP sludge in landfills contaminates the leachate with PFAS, which then is disposed of at WWTP but is not treated for PFAS, and the PFAS ends up in WWTP sludge, and eventually in surface and groundwater supplies.  Catch-22?

Compliance Funding

The “Show Me the Money” rant in Jerry Maguire (1996) resonates in town halls during debates on how to pay for expensive, unproven treatment systems for PFAS in drinking water.  The new drinking water requirements pose a huge financial burden on municipalities.  In 2019, Governor Baker introduced a proposed Supplemental Closeout Budget of $35 million in loan money to the Clean Water Trust for water supply projects.  In December 2019, the Legislature passed a Supplemental Budget with $24 million in funding for PFAS testing, design of treatment systems at PWS, and 0% interest loans for PWS to install treatment systems.  Impacted communities can seek reimbursement for costs and expenses incurred for testing and treatment systems.  MassDEP estimates the funding is adequate to test all PWS under the proposed MCL, and will be contracting with laboratories to provide free PFAS testing to PWS.  On January 31, 2020, the Board of Trustees for the Clean Water Trust approved a 0% interest rate loan pilot program for treatment systems that remediate PFAS in public water supplies.  Request for PFAS mitigation project funding are to be submitted for “emergency” financing by the end of December 2020.

Town Meetings acknowledged the need for safe, clean drinking water, and authorize appropriations for treatment systems.  Such approvals come with the expectation that PRPs will be vigorously pursued for recovery of costs.

The Future

Over the next several years, we hope to expand our work for PWS.  It is rewarding to work with dedicated and smart municipal leaders (Selectmen, Executive Assistant, DPW Director, Water Department) to forge and implement strategies for achieving swift and continuing compliance with evolving PFAS drinking water standards and guidance, providing interim bottled water to schools and residents, selecting and operating cutting-edge, full-scale pilot GAC and resin treatment systems, funding the multi-million dollar effort, and securing positive communications with MassDEP and water customers.

MassDEP should not be tempted to reduce the proposed 20 ppt PFAS MCL just because RI is proposing an MCL of 10 ppt for the weighted sum of six PFAS (with an explicit acknowledgement of the health benefit and cost uncertainties).  Instead, MassDEP should continuously rethink the alleged health risks posed by PFAS in drinking water that American’s have ingested since the 1950s, and recognize the relative paucity of evidence of human health impacts from low doses.  MassDEP should participate closely in the federal MCL process and be receptive to an increase in PFAS standards based on the EPA MCL and evolving science.

MassDEP should act as a clearing house on potential PFAS treatment technologies and permits, so PWS can avoid reinventing the wheel under the strain of legal and regulatory jeopardy.  The costs of PFAS treatment systems must be fully evaluated by MassDEP.  It is clear the $24 million in loan money from the Clean Water Trust available to all water supply projects, and not just for PFAS, is woefully inadequate.  Governor Baker and the Legislature must significantly increase funding for monitoring, treatment systems, and interconnections with clean water supplies.  Perhaps a share of the $3 billion surplus fund could be earmarked for PFAS and for replacing aging water mains now on life-support.  MassDEP should train PWS and consultants how to properly sample groundwater for PFAS testing.  MassDEP must certify more laboratories to test for low concentrations of PFAS in drinking water samples.

PWS are understandably concerned what new contaminants will emerge from UCMR4, and whether the expensive PFAS treatment systems will be capable of addressing a new suite of contaminants.  PWS also wonder if the coronavirus pandemic that is crippling the world impacts the delivery of safe drinking water.  The CDC and media bombard us with daily advisories on the rapidly increasing victims, and containment strategies and tactics (handwashing, sneezing, masks, disinfection, fist bumping instead of handshaking, travel bans, empty sporting venues, testing and quarantines).  Water supply professionals should take some comfort that the virus is only spread person-to-person during close contact, through inhalation of respiratory droplets from coughs or sneezes, handshakes, and touching the face.  The CDC, WHO and other experts advise that the virus is unlikely to be in raw water, and modern drinking water plants are already equipped to remove and disinfect viruses through filtration, chlorine, and ultraviolet processes.  Coronavirus will not be delivered through the drinking water distribution system to our faucets. 

MWWA is coordinating a weekly conference call with MassDEP and PWS on COVID-19 issues.  MassDEP has posted an initial FAQ for water systems that will be updated to include EPA guidance and additional concerns from PWS.

For the near future, the coronavirus will take the hot klieg light off PFAS.  Still, PWS will need to act eventually and expeditiously, in consultation with MassDEP, to plan, design, permit, purchase, and secure approval for a PFAS treatment system that will reliably produce drinking water that meets the MCL standard to be promulgated in 2020.  PWS should assemble their compliance teams now. 

John Shea

March 2020

 

For more information about PFAS:

  • The PFAS Zone. Peter F. Durning, Esq. (2019).  This tongue-in-cheek editorial riff on The Twilight Zone, explores the discomfort of Public Water Suppliers (“PWS”) and their customers during the time when MassDEP was just proposing MCP cleanup standards and an MCL for PFAS in drinking water.  Even without binding standards, MassDEP warned PWS to plan for the design and construction of expensive treatment systems to meet the proposed 20 ppt standard.  Here is the link to the May 2019 Newsletter article.
  • The Journal of the New England Water Works Association (Volume 133, No. 4, December 2019) published an excellent article on PFAS: “PFAS Toxicology – The Science Behind the Variation in Drinking Water Standards” that describes how state agencies are using toxicological evidence and uncertainty factors to establish enforceable MCLs for the PFAS compounds. Here is a link to the abstract on ProQuest.

Menino Legacies

 

           Thomas M. Menino, the longest serving, beloved 53rd Mayor of Boston (1993-2014), had many career accomplishments, some of which are covered in his memoir, Mayor for a New America (2014): his 2011 Climate Action Plan; the 2010 launch of the Innovation District on the South Boston waterfront; the transformation of Beantown to Greentown with LEED construction, tree planting, and recycling initiatives.  At least three achievements enjoy legacy status in 2020.

Initiative on Cities

            After his retirement in 2014, Mayor Menino was appointed Professor of the Practice of Political Science at BU and served as Co-Founder and Co-Director of the BU Initiative on Cities, an urban leadership research center bridging the gap between the academic study of cities and the real world practice of urban governance.  He created the Menino Survey of Mayors, a survey of the most pressing challenges that keep U.S. mayors awake at night.  The 48-page sixth edition 2019 Survey (www.surveyofmayors.com) covers infrastructure priorities, mobility and public safety, car culture, the changing nature of work, opportunity zones and climate change.  There are some noteworthy results.  Forty-five percent of mayors believe infrastructure is the most significant issue, and the “big ticket” items need investments in water, wastewater and stormwater.  Seventy percent think cities must have a strong role in reducing the effects of climate change, even if revenues are sacrificed or financial resources are expended.  Seventy-six percent believe cities are too dependent on cars and 66 percent believe cars are the largest source of greenhouse gas emissions.  Surely, the 2020 Survey will consider the municipal and business impacts of and responses to the coronavirus.  It is disappointing to consider the lost opportunity for critical infrastructure funding.

Boston Wetland Ordinance

            In January 2013, Mayor Menino directed the Conservation Commission to recommend guiding principles for drafting a local Wetlands Ordinance to address Boston’s vulnerability to the effects of climate change and coastal flooding, and to ensure developments around Boston Harbor take appropriate cost-effective measures to prepare for the foreseeable effects of climate change on safety and the economy.  In August 2013, the Conservation Commission issued Recommended Guiding Principles, including review of projects for the effects of sea level rise within Land Subject to Coastal Storm Flowage (LSCSF) and the Buffer Zone, and compliance with to-be-developed performance standards for more intense and frequent storm events throughout the project’s life cycle.  In December 2019, the Boston City Council and Mayor Walsh approved a Wetlands Ordinance with a goal to protect Boston against climate change impacts and to promote climate resiliency.  Applicants, lawyers and consultants wonder how quickly the Commission can adopt appropriate implementing regulations and maps for Inland and Coastal Flood Resilience Zones, especially with the suspension of governmental functions due to the coronavirus.

            For the Coastal Flood Resilience Zone, the Commission has discretion to determine whether the area beyond LSCSF “has a reasonable probability of becoming subject to future coastal storm flowage or tidal action due to seal level rise (SLR) within approximately the next 50 years.”  For the Inland Flood Resilience Zone, the Commission has discretion to determine whether the area of land beyond Land Subject to Flooding “has a reasonable probability of flooding as the strength, duration or frequency of precipitation events increase within approximately the next 50 years.”  Applicants will need to muster permit teams with the engineering, environmental science, and meteorological expertise to predict SLR and flooding.  These new evidentiary requirements will be fodder for project opponents challenging the science of predictive climate change and effects that will trigger debates, delay and appeals.  The Ordinance creates a Waterfront Area within the buffer zone to resource areas and allows the enlargement of the MassDEP Wetlands Protection Regulations Riverfront Area from 25’ to 200’.  The Commission’s jurisdiction is expanded to regulate activities which will “pose a significant threat to alter” resource areas, even if such work is not within resource areas or buffer zones.  This arguably allows the review of traditionally upland, non-jurisdictional areas under the Wetlands Protection Act.  Applicants have a burden of proof “by a preponderance of evidence that the work proposed…will not have an unacceptable significant or cumulative adverse effect upon the Resource Area Values protected by this Ordinance.”  The Commission should adopt regulations with objective criteria for SLR and flood elevation 50 year predictions to guide an otherwise discretionary decision by the Commission.

Harbor Ferry Service

            Water transportation via ferries, water taxis and shuttles in Boston Harbor serves commuters, convention attendees, airport travelers, and Encore gamblers in all seasons and weather conditions.  Tourists and recreationists use ferries.  In 2002, Mayor Menino released the “Long Island Limited Public Access Plan” which recommended water-based access as the best means for Boston to establish public access to Long Island, to limit impacts to Quincy neighborhoods, to address the inadequacies of the then existing land-based bridge, to protect people using the existing health facilities, and to preserve the natural, historic and archaeological resources on Long Island.  Fast-forward to October 2014, when Boston abandoned the old health facilities, and in 2015 demolished the bridge.  In 2018, Boston proposed to place a $100 million new bridge on 70-year old concrete piers that show deterioration, and which need an additional 75-year design life.  Opponents to the new bridge and pier reuse project argue for the use of ferries (and helicopters in medical emergencies) to access the yet-to-be designed addiction health care facility.  There is litigation challenging the adequacy of Boston’s alternatives analysis which did not fairly consider the reliability and feasibility of the use of ferry service to transport patients and support services to Long Island.  Mayor Menino, the Champion of Neighborhoods, was prescient in his endorsement of ferry service to Long Island in the 2020s and Beyond.

 

Winter 2020 Firm Activities and Successes

John Shea participated in the October 24, 2019 Boston Harbor Regional Coastal Resiliency Conference, “Keeping the Lights On and the Water Out for 100 Years or More” on the use of layered defenses for protection from flooding due to sea level rise and storm surge.  He also participated in the October 25, 2019 New England Water Works Association (“NEWWA”) program “Success in the Face of Challenges.”  He spoke at the December 10, 2019 NEWWA program “PFAS in Drinking Water: Tools for Water Utilities to Address an Emerging Issue” on “What If PFAS Happens to Us?  Legal Aspects and Funding Sources.”

Tom Mackie moderated the panel of industry leaders discussing challenges posed by the lack of regional solid waste disposal capacity at the EBC’s March Talking Trash program, including Toni King of Casella, John Farese of Wheelabrator, Jim Belden of Covanta, Scott Lemay of United Material Management and Steve Poggi of Waste Management.

As a member of the Massachusetts Water Works Association (“MWWA”) Legislative Committee, John assisted in preparing the July 18, 2019 Comments on MassDEP’s Proposed Changes to the Massachusetts Contingency Plan and a Proposed Maximum Contaminant Level (“MCL”) for PFAS compounds in drinking water.  We drew upon the expertise of Green Toxicology, LLC and Sanborn Head & Associates.

John participated in the November 20, 2019 BU Pardee Center seminar, “The Pentagon, Greenhouse Gases & Climate Change” as part of the Costs of War project.  The DOD has the world’s largest carbon footprint due primarily to fuel use in the counter-terrorism wars.  DOD views climate change and related resource scarcity (water, food, oil and refugee migrations) as leading to more conflicts and war, and believes the best response to climate change is to be ready for the inevitable conflicts. 

A key component of the firm’s winning argument in an important case on the statutory interpretation of the Water Management Act was the legislative history of the WMA.  Working with the reference librarian in the State House Archives, Gail Hire reviewed the voluminous collection of former state Senator Carol Amick.  Sen. Amick was at the epicenter of the debate on the construction of the WMA and her papers provided a good roadmap to understand the evolution of the legislature’s thinking and the impetus behind the creation of different classes of uses through registrations and permits.

Peter was the organizing chair for an EBC program on PFAS in Drinking Water on November 5, 2019.  Peter also moderated the discussion among the presenters, Laura Green of Green Toxicology, LLC, Rob Little of Woodard & Curran, Brandon Kernen of NH DES, and Kathy Baskin, the MassDEP Assistant Commissioner for the Bureau of Water Resources.

Tom and Gail have been very active in supporting a national client’s tax equity investment and a lender’s associated financing of a large portfolio of solar projects throughout the Commonwealth.  From local building permits to Statements of Qualifications under the DOER’s SMART program they have performed legal due diligence on literally hundreds of permits and approvals for these important large scale renewable energy projects. 

John lectured on “Understanding Federal and Massachusetts Wetlands Law: Permitting and Appellate Processes” on December 5, 2019 for Half Moon Education, Inc. 

Peter Durning moderated the panel discussion at EBC’s Meeting with MassDEP Regional Solid Waste Section Chiefs, including Greg Cooper, the MassDEP Director of the Hazardous and Solid Waste Division of the Bureau of Air & Waste, and the four regional Solid Waste Section Chiefs, Mark Fairbrother (NERO), Mark Dakers (SERO), Jim McQuade (CERO) and Dan Hall (WERO).

John attended the “Sustainable Space, Sustainable Earth” Symposium sponsored by the Smithsonian and Framingham State University in conjunction with the “Moon Landing in Context Project” on December 6, 2019.  He was part of a colloquy on a Legal System for Near Earth and Lunar Commercial Users. 

 

Peter also moderated a panel on waste management strategies in the construction industry during the EBC Solid Waste Committee’s C&D Summit on January 30, 2020, and gave a presentation on emerging litigation issues related to PFAS contamination and regulations for the Mass Water Works Association on February 11, 2020.

John Shea again moderated the annual Environmental Business Council Series with MassDEP Leadership: Commissioner Marty Suuberg and the Southeast Regional Office Leadership Team.  At the October 2, 2019 program, John introduced and questioned Commissioner Suuberg, Regional Director Millie Garcia-Serrano, and Deputy Regional Directors David Johnston, Gerard Martin, Seth Pickering and Jennifer Viveiros, and Courtney Rocha, the new SERO Climate Coordinator.  The Commissioner explained staffing reassignments, recalls to active duty for critical programs (Ch. 91), and new hires in response to the “graying” of MassDEP; proposed changes to the Massachusetts Contingency Plan to set cleanup standards and to the Drinking Water regulations to set Maximum Contaminant Levels for six PFAS compounds; and the draft Solid Waste Master Plan for 2020-30 to address the loss of in-state disposal capacity and aspirations to increase recycling and reuse. 

Millie used recent examples to illustrate how SERO is moving forward through transformational leadership; is delivering on mission and core program goals in permitting, compliance and enforcement; and is promoting the energy-environment nexus for battery storage facilities and for offshore wind support.  Gerard explained how MassDEP is addressing PFAS through a collaboration of the Waste Site Cleanup and Drinking Water Programs, and highlighted PFAS work at Joint Base Cape Cod, Barnstable County Fire and Rescue Training Academy, the Barnstable, Martha’s Vineyard, Nantucket, and Plymouth Airports, and five municipal water supplies.  Seth encouraged the proper use of local zoning to bolster MassDEP’s enforcement cases on noise, odor and visible emissions from industrial and solid waste facilities, and wind turbines.  Jennifer explained how SERO is building and retaining a sustainable work-force, and upgrading vehicles and field equipment.  She proudly bragged about the commitment of SERO staff for voluntary emergency management assistance deployments to hurricane devastated locations.  Courtney explained the Municipal Vulnerability Preparedness Program’s support of municipal planning and construction in response to increasing threats from climate change.  Dave Johnson wowed us with his work on the decommissioning of the Pilgrim Nuclear Station, and the indefinite on-site management for 47 years of spent nuclear fuel.  DJ stole the show by circulating through the audience a nuclear fuel pellet, with a belated warning not to hold it too long!

 

 

The PFAS Zone

Picture if you will, a grey Friday morning in New England. While the mist lifts from the steeple just off the town green and kids shuffle to school bundled against the chill, during this inauspicious dawn on April 19, 2019, Massachusetts crossed over into the “PFAS Zone.” 

On that date, the Massachusetts Department of Environmental Protection (“MassDEP”) unveiled proposed changes to regulatory standards for certain hazardous materials in the state’s rulebook for conducting response actions to remediate contamination, the Massachusetts Contingency Plan, 310 CMR 40.0000 et seq. (the “MCP”). 

The draft revisions address a class of per- and polyfluorinated compounds commonly referred to as PFAS. These synthetic compounds are valuable in industrial and commercial applications for their hydrophobic characteristics. They are used in stain-resistant carpets and upholstery, medical instrumentation, weatherproofing fabrics, car wash waxes, firefighting foams, and microwavable popcorn bags. It is estimated that PFAS is present in the bodies of 98% of the US population.

MassDEP’s proposal sets a reportable concentration and clean-up standards for PFAS in soil and groundwater. Significantly, the GW-1 cleanup standard for groundwater, which may contribute to drinking water, is just 20 parts per trillion (ppt) for the aggregate concentration of six different PFAS compounds. This value sets the baseline level that the state believes is acceptable to persist in the environment without causing an adverse impact on public health. Thus, even though the proposed cleanup standard in the MCP is not an express regulation on drinking water standards, in effect, the regulatory package sets forth the state’s proposed conclusion with respect to the acceptable amount of PFAS in drinking water that is protective of public health.

At the same time that the state released the draft regulations for the MCP, MassDEP also revealed its intention to set a maximum concentration limit (“MCL”) for PFAS in the regulations for drinking water during the winter of 2019-2020. Though MassDEP has just started a stakeholder process to receive feedback on an appropriate MCL for drinking water, it is very likely that MassDEP will propose 20 ppt as the maximum acceptable level of PFAS in drinking water as that process proceeds.

Bending the dimension of time, just days before making its public pronouncements unveiling its proposed rulemaking, MassDEP sent letters directly to water suppliers disclosing the formal start of the MCP comment period. While this communication revealed the proposed lower standards for protecting public health, it also reinforced the fact that, until the MCL has been established as a formal regulatory requirement, public water suppliers have no legal obligation to comply with the 20 ppt limitation on PFAS in drinking water. In this manner, public water suppliers were given the burden of deciding whether to comply with the most stringent proposed PFAS limit as soon as the proposed rule was announced, or to continue to plan and budget for compliance with the legal and regulatory requirements.

Indeed, while the proposed cleanup value for PFAS is a compelling basis for protecting public health, the press release from MassDEP only indicates the start of a public comment period. During that time, MassDEP is going to hold four public meetings – one in each of the four MassDEP regions. (See May 3, 2019 Public Notice for Revised meeting dates.) The Department will also accept written public comments as part of the administrative review process. Not only is the state’s expression of the “safe” level of PFAS in drinking water not yet law, it is likely that public comments will argue that such a stringent value is not necessary to avoid health impacts. In the end, MassDEP may reevaluate its conclusions about the appropriate PFAS level to protect public health.

The scientific community has not reached a consensus on the true impact of PFAS on human health. While there have been documented health impacts from the C8 Health Project funded by DuPont in the wake of major PFAS exposure in West Virginia, the root basis for the movement pushing the “tolerable” levels of PFAS lower and lower are predominantly rodent studies which do not necessarily correlate to the physiological conditions in humans. Much of the caution behind the regulatory fervor is driven by the fact that PFAS in pregnant women can cross the placenta barrier into embryos and through breast milk to infants. The possibility of PFAS being present in developing cells and the fear of complications stemming from these man made compounds in the body, are the main drivers of the health risk assessments. While these possibilities are concerning, it is unclear whether the potential health impacts to the sensitive populations are best addressed by public water system regulations.

Roughly, one week after the press release from MassDEP, US EPA released interim recommendations on PFAS. EPA issued guidance that “[i]n situations where groundwater is being used for drinking water, EPA expects that responsible parties will address levels of PFOA and/or PFAS over 70 ppt.” Like the limbo of the Massachusetts regulatory rulemaking process, this communication from EPA is not sufficiently instructive. The phrase “responsible parties will…” is not a clear mandate to prompt action to preserve and protect public health. 

Furthermore, EPA’s announcement specifically acknowledges, “toxicity information is being developed on additional PFAS and [EPA] will consider that information as it becomes available.” While the regulator’s candor is appreciated, this statement from EPA undermines the conclusion that water suppliers and PRPs must act expeditiously to avoid providing water with greater than 70 ppt of PFOA and PFOS – let alone over MassDEP’s expected combined standard of 20 ppt, because the toxicity information is still being developed and analyzed. 

Though by operation of law states can set more stringent contaminant levels than the federal government, for public water suppliers in Massachusetts, the decision by EPA to set 70 ppt as protective of public health contravenes MassDEP’s drive to adopt a much lower standard. Another confounding factor is that, despite the considerable attention on this issue, there is no consensus among the New England states on the proper limit. The differences stem from different assumptions made by the individual states’ health risk assessors, like the target human subject (VT- breastfeeding infants; NH – lactating female) and the volume of water the target subjects will consume in an average day.

Another significant difference between EPA’s approach and the regulations proposed by Massachusetts, is the number of regulated compounds. EPA’s health advisory only addresses PFOA and PFOS, while the current health advisory in Massachusetts requires the monitoring of five PFAS compounds and the proposed regulations set 20 ppt as the limit for a combined total of six compounds. The so-called “Massachusetts 6” consists of PFOS, PFOA, PFNA, PFHxS, PFHpA and the newly-added PFDA (Perfluorodecanoic Acid). This regulatory approach adds yet another dimension to the PFAS Zone in Massachusetts, because it requires specialized testing, which may not be readily available from all vendors, and will certainly drive up monitoring and compliance costs within Massachusetts.

As with many of the scenarios in Rod Sterling’s harrowing TV series, a critical dimension of the PFAS Zone is the role of public perception. For the public at large, these disparate data points among states and the federal government and between current and proposed regulatory values sew confusion and concern. Members of the public who learn Massachusetts intends to lower its remedial standard for groundwater that may contribute to public drinking water resources to 20 ppt, would have an understandable basis to demand that their local water supplier must meet the proposed standard to protect public health today. While there is no legal obligation for water suppliers to meet the predicted 20 ppt standard, public opinion and MassDEP prodding is forcing public water suppliers with reported concentrations over 20 ppt to plan for the design and construction of expensive PFAS treatment systems.

Of course, no regulator or public water supply professional can ignore the signs indicating a public health crisis may happen on their watch.  The experience in Flint, Michigan is still seared in the minds of people who make frontline decisions on water quality and acceptable health standards. No one wants to be the next Flint. Perhaps justly, the lesson from Flint is to be proactive and ward off accusations of complacency when there is evidence of the potential for negative public health impacts from PFAS.

For public water suppliers in Massachusetts, there is no comfort in this Twilight Zone of guidance and proposed regulation. Water supply professionals must continue the daily vigilance to ensure clean and safe water. They must grapple with the fear that PFAS and other new synthetic “invaders” may appear that will require expensive cutting edge treatment. Emerging contaminants are causing all of us to finally recognize the true cost of drinking water.

Posted on In Categories NewsletterTags: Tags ,

WOTUS, POTUS and SCOTUS: The Future of Clean Water Act Jurisdiction

In our Spring and Fall 2015 and Spring 2017 Newsletters, we predicted a growing morass of litigation challenging the EPA and Army Corps’ Clean Water Rule (the Rule) on the scope of jurisdictional Waters of the United States (WOTUS).  In 2015, President Obama, the EPA and the Corps issued a Rule (the 2015 Rule) that sought to codify existing criteria that EPA and the Corps had been applying on a case-by-case basis, using the three alternative tests announced by the Supreme Court of the United States (SCOTUS) in Rapanos v. United States, 547 U.S. 715 (2006).  A flood of litigation resulted.  Even before the 2015 Rule was to take effect on August 28, 2015, 27 states filed federal lawsuits.  On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the 2015 Rule nationwide and agreed with the federal government that the 2015 Rule was reviewable exclusively in the circuit court of appeals.  SCOTUS agreed to decide the narrow jurisdictional issue.

In January 2018, SCOTUS issued a decision in Nationwide Association of Manufacturers v. Department of Defense, 138 S. Ct. 617 (2018), authored by Justice Sotomayor, which ruled that the appropriate forum for challenging the 2015 Rule is a federal district court.  SCOTUS reversed the Sixth Circuit and remanded with instructions to dismiss the petitions for lack of jurisdiction, and to vacate the nationwide injunction against the 2015 Rule.

President Trump in 2017 issued an Executive Order directing EPA and the Corps to vacate the 2015 Rule.  In February 2018, EPA and the Corps finalized a Rule (the 2018 Rule) that mirrors Justice Scalia’s opinion in Rapanos and delayed implementation until 2020.  Two district courts found the rulemaking to be arbitrary and capricious because EPA and the Corps issued the 2018 Rule without seeking meaningful public comment, and issued nationwide injunctions.  Three more district courts issued preliminary injunctions barring the use of the 2018 Rule in 28 states, because the POTUS agencies exceeded their authority under the Clean Water Act.  As a result of the federal court rulings, the 2015 Rule is still effective in 22 states, including Massachusetts. 

It will take another decade before there is a Final Rule on the scope of jurisdictional waters of the United States for future permitting of activities in wetlands and on adjacent lands, and enforcement actions under the CWA by EPA, the Corps and environmental groups.  The years will be marred by the inevitable rulemaking hijinks, and federal lawsuits challenging the rulemaking procedures and the substance of any proposed new Rule.  An enlightened and unified Congress could amend the CWA to better define the geographic and regulatory scope of WOTUS.  Without a Final Rule, decisions on proposed projects will continue on a case-by-case basis, using the three alternative tests announced in Rapanos, EPA and Corps guidance documents, criteria in a draft Rule, and Massachusetts practice and precedent.  Developers and landowners will need environmental lawyers and engineers who are immersed in the turbulent WOTUS.

Posted on In Categories NewsletterTags: Tags ,

Water Management Tango

Comparing Water Management in Massachusetts and Mendoza, Argentina

As an environmental lawyer with vocational zeal, every opportunity to travel and see new places triggers a fascination with environmental policy.  During a recent trip to Mendoza, Argentina, issues related to water rights were front and center.

You could literally trip over the issue, because most sidewalks have irrigation ditches or “acequias” on the curbs and sidewalks to transport water throughout the region.

Though Mendoza sits on the very arid eastern leeward side of the Andes Mountains, the regional planners conceived a complex web of irrigation channels designed to bring fresh Andean snowmelt into the city, agricultural lands, and now the sprawling suburbs.

As with many of our environmental law projects, some of the most important work is performed by engineers. In 1889, the government of Mendoza recruited an Italian engineer, César Cippoletti, to improve the region’s hydrologic system. Cippoletti designed and supervised the construction of a dam to hold water from the Mendoza River and redirect the flow of the mountain run-off in the river through a series of directional canals. Just past the dam, one of the simplistic, yet elegant, structures designed by Cippoletti is a four-quadrant inverted cone. As the dammed water rises above the lip of the structure, it is channeled into one of four curved funnels.  The water descends through the curved quadrants, gathering speed and direction toward different parts of the Mendocino irrigation system.

 

 

 

 

 

With this complex irrigation infrastructure, the arid region boasts a cornucopia of agricultural riches, including large potato, garlic, tomato, and butternut squash farms.  But the true pride of Mendoza, is its burgeoning wine industry. High-quality wines provide a fantastic export crop with an accompanying economic boom for agro-tourism in Mendoza and the vineyards in the neighboring Uco Valley.

The arid conditions and well-developed irrigation systems are excellent for controlling the grapes’ exposure to water. In addition to regulating water, the daily temperature variations in the region have beneficial influences on the growth of a robust skin on the grapes. The grape skin is a primary driver of flavor and color in the wine-making process. Thus, these strong-skinned grapes of the Uco Valley provide good ingredients for bold wines, including Malbec, which is the primary driver of the region’s reputation.

For all of the ingenuity and planning for the advanced irrigation system, water is still a finite resource in the region. Overtaxing the system could lead to dramatic impacts for all users. To preserve and protect the region’s water resource, Argentina developed a comprehensive nation-wide regulatory scheme. Argentina adopted a Water Law in 1916, which is similar to Massachusetts’ Water Management Act(“WMA”). The Argentinian law grandfathered existing users through a system which is similar to WMA Registrations. Argentina’s Water Law accommodated new users with licenses that operate like permits in Massachusetts. Just as the Massachusetts Department of Environmental Protection (“MassDEP”) oversees water withdrawals from the various river basins in the Commonwealth, the water management system in Argentina is administered by the Departamento General de Irrigación (DGI). The DGI approves and regulates irrigation licenses, oversees allocations among historic surface water users, regulates temporary projects or discharges, and evaluates and authorizes proposed new users.

This legal structure in Argentina is very similar to the modern WMA in Massachusetts, which centralizes the administration of water rights in the professional staff of the MassDEP, rather than be subject to the whims of the political actors in the State Legislature. Like Argentina’s 1916 Water Law, the WMA creates tiers of rights between active users, at the time the law was adopted, and new users, who came on-line following the statutory observation period for registrations from 1981 through 1985. Different sections of the WMA – and the corresponding regulatory section of 310 CMR 36.00 – establish different requirements for registrations and permits, which are grounded in the WMA’s statutory purpose of protecting and preserving the Commonwealth’s precious water resources.

Managing Water as Demand Grows and Supply Is Strained

While agriculture, industry and residential development can flourish side-by-side when resources are abundant, there are tensions between users when scarcity occurs. Even with their well-developed infrastructure and generally plentiful mountain run-off, the Mendoza region still experiences drought and supply problems. The authorities simply cannot approve all proposed projects.

During our time in Mendoza, we observed a planned housing development in an advantageous location near a major arterial highway that stood fallow. Though the developer began designating internal roadways and had launched a marketing effort for new homes on the outskirts of the metropolitan area, the entire project was abandoned, because the water authority did not approve an extension of the canal system to provide water to this location. There are no potential alternate water sources. Thus, without access to the regional water distribution channels, the project was doomed. The development’s abandoned footprint sits like the shadow of a ghost town that never was, and serves as a stark warning of the perils of stretching a limited resource.

Water allocation in Massachusetts is not nearly as dire. Unlike Mendoza, Argentina, or even many communities in the Western United States, Massachusetts enjoys a temperate climate.  Water management issues in the Commonwealth do not occur against a backdrop of desert conditions. And yet, drought conditions can occur and strain a community’s ability to keep water in the taps – for industrial, agricultural, and residential users.

Additionally, the forces of impending climate change are not linear or neatly predictable.  Some models forecast the climate of Massachusetts as being very wet, but there are also predictions of more pronounced swings between periods of plentiful rain and extended periods of drought.  Against this backdrop, managing our water resources in times of relative abundance may influence how successful we are in navigating periods of water scarcity.

While Massachusetts is currently experiencing an uptick in residential and industrial development, proper planning and water needs forecasting must be part of the statewide effort to ensure there are adequate resources to support public water supplies, agricultural activity, and natural ecosystems. Like Argentina’s DGI, which has authority over irrigation licenses and can preserve resources for existing uses and ensure the system is not overtaxed, MassDEP has the power within the structure of the WMA to exercise informed professional discretion to protect our public water supplies, provide flexibility for emerging industrial needs, and preserve our shared natural resources. Though it may create some harsh outcomes – like the abandoned housing complex outside Mendoza, MassDEP also needs to be able to say “No” when users seek to over-exploit a resource.

With the WMA, Massachusetts has a strong statewide regulatory structure to provide stewardship and achieve a fine balance among residential, industrial, and agricultural users on a watershed basis.

By Peter Durning

Environmental Law Update – Fall 2018

On September 30, the Massachusetts federal District Court dismissed Toxics Action Center, Inc. v. Casella Waste Systems, Inc.,  a citizens suit under the Clean Water Act and RCRA alleging that discharges of leachate from Casella’s Southbridge landfill through groundwater had damaged surface water and contaminated private wells. The Court dismissed the RCRA counts, because additional Court action would be duplicative of  MassDEP’s enforcement actions and, therefore, not “necessary.” The Court acknowledged that “[t]he First Circuit has not addressed whether a discharge of a pollutant that moves through ground water before reaching navigable waters may constitute a discharge of a pollutant, within the meaning of the CWA.”  But the Court sidestepped the groundwater discharge issue as follows: “a landfill is not a point source within the meaning of the CWA, this Court will not reach the issue of whether the CWA extends liability to surface water that is polluted via hydrologically connected groundwater.”

On September 26, the Department of Public Utilities issued an Order providing for utilities to pay direct incentives to owners of new solar generating sources under the Solar Massachusetts Renewable Target (SMART) program.

On September 17, Massachusetts rolled out its first-in-the-nation 2018 State Hazard Mitigation and Climate Adaptation Plan which integrates climate change impacts and adaptation strategies with hazard mitigation planning.  The Plan qualifies the state for Stafford Act funds (per FEMA hazard mitigation grant criteria at 44 CFR § 201.4) and also complies with Executive Order 569.  The state will update the plan every five years, with continuous reviews, updates and revisions via the new Climate Change Clearinghouse.  To date, over 150 communities have performed vulnerability assessments and developed action-oriented resiliency plans under the Commonwealth’s Municipal Vulnerability Preparedness Program (MVP).  Certified MVP communities are eligible for MVP Action grant funding and other opportunities.

On September 4, the Supreme Judicial Court handed down New England Power Generators Association, Inc. v. Department of Environmental Protection rejecting the Power Generator’s challenge to MassDEP regulations requiring decreases in annual GHG emissions under the Global Warming Solutions Act (GWSA). Deferring to MassDEP’s interpretation of the Act, the Court ruled that the Department had the authority to impose annual declining emissions on the electric sector under Section 3 d of the Act, despite the existence of provisions in Section 3 c of the Act, which are specifically applicable to electric generating facilities.

On August 21, Governor Baker signed the $2.4B Environmental Bond Bill including provisions that put into law his 2016 Executive Order 569, establishing an integrated strategy for climate change adaptation discussed above.

On July 12, the EPA and Army Corps issued a Supplemental Notice of Proposed Rulemaking on their proposal to roll back the Obama-Era Waters of the United States (WOTUS) Rule defining the agencies’ Clean Water Act jurisdiction. The comment period ended on August 23, 2018.  Whatever the agencies ultimately decide, ongoing litigation is sure to continue to delay the clarity sought by so many in the regulated community over the breadth of the agencies’ jurisdiction.

In addition to EPA’s April 2018 proposed Strengthening Transparency in Regulatory Science rule, which would limit the scientific studies that the EPA could rely upon in evaluating new regulations, on June 13 the Agency issued an Advanced Notice of Proposed Rulemaking  to change the methodology used to calculate the cost and benefit of new environmental regulations.  Battle lines are being drawn over whether the EPA should continue to count so-called “co-benefits,” which take into account the indirect health benefits in addition to the direct benefits of a proposed new regulation. For example, in the case of the mercury air toxic rule, the EPA included $4-6M of direct health benefits from reduced mercury exposures and $80B in co-benefits attributable to the reduction of other pollutants, primarily particulate matter (PM).

In March, MassDEP promulgated a package of amendments to its air pollution control regulations at 310 CMR 7.00 across a wide array of topics, including a revamp of the rules governing appeals of air plan approvals, which had long been the source of legal uncertainty and litigation.

 

Firm Activities – Fall 2018

John Shea  again moderated the annual EBC Program Series with MassDEP Leadership: Commissioner Marty Suuberg and the Southeast Region Leadership Team. At the October 2, 2018 program, John introduced and questioned pinch-hitting Deputy Commissioner Gary Moran, Regional Director Millie Garcia-Serrano, and Deputy Regional Directors David Johnston, Gerard Martin, Maria Pinaud and Jennifer Viverios. Gary announced that MassDEP is working with the UMasss Donahue Institute on short- and long-term succession planning since the average age of the 660 agency personnel is 55, with 54% eligible for retirement; the challenges being how to preserve institutional knowledge and hire bright, young environmental professionals.

Dave Johnston highlighted the critical need to repair and replace failing water distribution and wastewater infrastructure. He punctuated his warning by displaying a section of a corroded and narrowing water line that is causing dirty drinking water and pipe failures in many municipalities.

Tom Mackie and Gretchen Carey of Republic Services co-chaired the EBC Solid Waste Committee’s July 20 Innovative Alternative Technologies to Manage Municipal Solid Waste program.  The international panel from Denmark, Great Britain, Australia and the Netherlands presented technologies from around the world, ranging from enzymatic separation to advanced gasification.

On September 18th, Tom chaired the third annual EBC Solid Waste Committee meeting with the MassDEP Regional Solid Waste Section Chiefs. Greg Cooper, the MassDEP Solid Waste Division Director, provided an overview.  Mark Dakers (SERO), Mark Fairbrother (NERO), Dan Hall (WRO) and Jim McQuade (CERO) provided updates on their regional priorities, permits issued and changes in their departments to a packed room of solid waste industry officials and consultants.

 

Peter Durning attended several industry events this fall, including the Boston Bar Association’s Annual Meeting in September, the LSPA’s 25th Anniversary event at Mechanics Hall in Worcester, as well as the Massachusetts Water Works Association’s Annual Meeting in Devens, MA.

Peter also had the opportunity to attend the VIP-Preview Night for the Grand Opening of the MGM Springfield casino.  Peter and Tom represented MGM in a zoning litigation matter  in the Land Court.

Peter Durning and John Shea participated in the EBC Program Series with MassDEP Leadership: Commissioner Suuberg and the Central Region Leadership team on September 25th.  The most exciting news was the Brownfield redevelopment in Kelley Square and the Canal District for the proposed Polar Park, the future home of the WOOSOX.  In addition to the ballpark, there will be hotels, shops, restaurants, and market rate housing.

 

Climate Change: Believe Your Eyes

As summer closed, we took a family vacation to Oregon.  In addition to lingering in Powell’s Books, eating from food trucks, and drinking local brews and Stumptown Coffee during several days in Portland, we borrowed a friend’s car for excursions to Cannon Beach and the Columbia River Gorge.   As part of our family goal to someday visit all 50 states, we made sure to cross into Washington.  We grabbed that extra state with a dramatic pedestrian crossing over the Bridge of the Gods, which serves as the Columbia River crossing on the Pacific Crest Trail.

After a restful and restorative trip, I returned to work after Labor Day, as news of the Eagle Creek Fire along the Oregon/Washington border brought the reality of Western wildfires to a personal level.  With visions of our triumphal Columbia River crossing still fresh, it was harrowing to learn of the breadth and rapid spread of the Eagle Creek Fire, which allegedly was started with a discarded firework.  Careless fireworks are always a risk, but in the tinder box of the exceedingly dry Pacific Northwest forests this summer, this act of carelessness devastated over 50,000 acres.

Read More → “Climate Change: Believe Your Eyes”

Is There a Liability Exemption for Emerging Contaminants Under G.L. c. 21E; and Oh, Gosh, Do I Need to Notify the DEP If I Find Them?

As you are surely by now aware, the federal and most state governments have recently begun to regulate several new classes of chemicals, including Per- and Poly-Fluoroalkyl Substances (“PFAS”). Regulators have also lowered the concentrations at which certain chemicals historically listed as hazardous materials/substances are considered to pose a risk, such as 1, 4 dioxane and TCE. Last spring, I authored MassDEP’s TCE Closed Site Review: The Legalities which concluded that a landowner of a permanently closed TCE site revisited by the MassDEP should be entitled to the liability exemption under G.L. c. 21E, §5C even though the MCP purports to require further response actions.

What my article did not discuss is whether the liability exemption under Section 5C of G.L. c. 21E would protect such an “eligible” owner from liability for an emerging contaminant that is first discovered and first considered to be a hazardous material like PFAS after the site achieved a permanent solution. Likewise, my article did not address whether such an owner would have to report its knowledge of the presence of such contaminants to the MassDEP. I conclude that because of the narrow language of Section 5C those owners should be prepared to address emerging contaminants under the MCP and c. 21E or risk liability to the MassDEP and they must notify the MassDEP if the concentrations pose or could pose an imminent hazard.

Liability Exemption?
Section 5C of c. 21E states that “an eligible person shall be exempt from liability . . . pursuant to this chapter . . . for any release of oil or hazardous material at the site or portion of a site owned or operated by said eligible person, as delineated in a waste site cleanup activity opinion, for which a permanent solution or remedy operation status exists and is maintained or has been achieved and maintained in accordance with such opinion . . .” For the liability exemption to apply, the “permanent solution or remedy operation status” and the “waste site cleanup activity opinion” must exist and be maintained for “any release of oil or hazardous material at the site.” The statute does not appear to exempt the owner from liability from the entire site but only exempts the owner from liability “for any release of oil or hazardous material” for which a permanent solution or remedy operation status exists and is maintained. Whether the Legislature’s reference to “any release of oil or hazardous material at the site” is broad enough to exempt the owner from liability for releases of hazardous materials that were not actionable at the time the permanent solution or remedy operation status were filed or only those that were actually assessed is unclear. Heavy emphasis on “any” hazardous material would support the application of the exemption. A more narrow reading (which is ordinarily applied by the courts in reviewing public health and safety legislation) would only exempt the owner from liability for releases of oil and those hazardous materials that were actually assessed as part of a waste site cleanup activity opinion in support of the permanent solution or remedy operation status. This differs from the case of a reopened TCE site because a permanent solution or remedy operation status “exists and is maintained” for “the release of oil or hazardous material [i.e. TCE] at the site” in accordance with the waste site cleanup activity opinion. The same legal framework and analysis for the lowered action levels for TCE should apply equally to contaminants such as 1,4 dioxane, that have historically been listed by the MassDEP as hazardous materials but have recently been assigned much lower action levels. Both must be properly addressed as part of the LSP Opinion.

Notification Required?
Chapter 21E, § 2 defines “hazardous material”

material including but not limited to, any material, in whatever form, which, because of its quantity, concentration, chemical, corrosive, flammable, reactive, toxic, infectious or radioactive characteristics, either separately or in combination with any substance or substances, constitutes a present or potential threat to human health, safety, welfare, or to the environment, when improperly stored, treated, transported, disposed of, used, or otherwise managed. The term shall not include oil. The term shall also include all those substances which are included under 42 USC Sec. 9601(14), but it is not limited to those substances.

Under this broad definition, PFAS are hazardous material because of their toxicity.

Chapter 21E, § 7 requires notice to the MassDEP of releases of hazardous materials:

Any owner or operator of a site or vessel, and any person otherwise described in paragraph (a) of section 5, . . ., as soon as he has knowledge of a release or threat of release of oil or hazardous material, shall immediately notify the department thereof.
However, under that same section the MassDEP has published in the MCP “regulations establishing thresholds below which notification shall not be required by this section.”

Without diving into the numerous and complex exceptions to notification, generally under 310 CMR 40.0311, notification is only required for a release or threat of release of a hazardous material for which MassDEP has promulgated either a Reportable Quantity or Reportable Concentration or if the hazardous material exhibits one or more of the characteristics of hazardousness at 310 CMR 40.0347 (ignitability, corrosively, reactivity, toxicity, or infectiousness). Because MassDEP has not promulgated Reportable Quantities or Concentrations for PFAS (and they are not characteristically hazardous), mere detection of PFAS does not require notification. However, two hour notification is required if the PFAS “poses or could pose an imminent hazard.” 310 CMR 40.0311(7). An “imminent hazard” is defined in relevant part as “a release to the environment of oil and/or hazardous material which poses a significant risk to human health when present for even a short period of time, as specified in 310 CMR 40.0950.” 310 CMR 40.0321 (1)(d). 310 CMR 40.0950 requires that a Method 3 risk assessment method shall be performed to determine if an imminent hazard to human health exists. A Method 3 risk assessment includes use of Reference Doses and Reference Concentrations for toxicity and Carcinogenic Slope Factors and Unit Risk Values for cancer risk. According to MassDEP’s Draft Fact Sheet Guidance on Sampling for PFCs, the USEPA has established a Reference Dose of 0.00002 mg/kg/day, documented in the Drinking Water Health Advisory, which would serve as the basis of a MCP Risk Characterization.

In conclusion, eligible persons who own sites where emerging contaminants are discovered are not exempt from liability or notification of the detection of such contaminants. If there are no promulgated RCs or RQs for the contaminant, a Method 3 risk assessment will be required to determine if an imminent hazard exists and notification is required. In that case, 2 hour notice is required. If an imminent hazard exists, the responsible party will need to notify and perform an immediate response action and follow on MCP assessment and possible remediation. Even if no notification is required, the responsible party is required under the MCP to carry out response actions and is not exempt from liability to the MassDEP for failure to take such actions.

Afterward
When I first started to dive into this dense analysis (apologies to the reader), I experienced cognitive dissonance. I simply could not get my mind around the concept that decades old closed sites could present a whole new set of engineering, legal and financial problems. I felt like Marty McFly in Back to the Future. Although CERCLA has statutory “reopeners,” that concept seems foreign to the Massachusetts site clean up arena under the MCP and c. 21E. Not until I read the EPA’s Health Advisory on PFOA, did the potential public health risks start to sink in and my head clear.

I am not sure that the liability framework under CERCLA and c. 21E is the best means to address emerging contaminants. Aside from creating cognitive dissonance, I wonder if it is fair (as if CERCLA and 21E were ever fair) at this time, to require somewhat remote parties (i.e. people other than manufacturers who released these chemicals to the environment) to be legally responsible for exceedingly low concentrations of ubiquitous chemicals that were in the stream of commerce as products, and had nothing to do with waste disposal decisions. Regardless, for now, LSPs, responsible parties and their non-environmental counsel need to clear the mental fog and take their reporting and response obligations for emerging contaminants seriously – – at least until we invent a better mouse trap. For if this is just the beginning of a much bigger long-term trend, I fear that the existing “polluter pays” approach will not be workable.

By Tom Mackie

Posted on In Categories NewsletterTags: Tags ,