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.
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’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.
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.
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?
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.
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.
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.