On Thursday, April 18, 2019, MassDEP issued a set of proposed revisions to the Massachusetts Contingency Plan, 310 CMR 40.0000 et seq. (the “MCP”), including modifications to various notification provisions, new adequately regulated provisions for disposal-sites with Radioactive Materials, and updated to Reportable Concentrations and numerical cleanup standards for certain chemicals. The most controversial set of the proposed MCP revisions are the new proposed Reportable Concentrations and cleanup standards for a large class of synthetic chemical compounds commonly called PFAS.
Though PFAS are now banned from being used in manufacturing processes in the United States, they were used for decades in consumer products and industrial applications, because they are resistant to heat, water, and oil. These same traits that made these chemicals attractive options for stain-resistant upholstery, water-proof clothing, microwave popcorn bags, and fire-fighting foams have been associated with health effects when the substances accumulate in the human body through ingestion and exposure.
There is no nation-wide consensus on a safe level of exposure to PFAS. Several states have set regulatory levels below the current EPA Health Advisory level of 70 ppt for the sum of PFOA and PFOS.
MassDEP established an Office of Research and Standards Guideline (ORSG) of 70 parts per trillion (ppt) for the cumulative total of five particular PFAS compounds in June 2018. MassDEP’s announcement on Thursday proposed a Method 1 GW-1 standard of just 20 ppt for an expanded set of six PFAS compounds, including: PFOS, PFOA, PFNA, PFHxS, PFHpA and the newly added PFDA (Perfluorodecanoic Acid).
While the announcement is not formal change to the ORSG, the announcement from MassDEP states the proposed regulatory package, “reflects an approach that is concurrently being considered for a revised MassDEP ORSG (drinking water guideline) used to evaluate public water supplies.”
These draft regulations for changes to the MCP are subject to a notice and comment period. MassDEP issued a Public Hearing Notice for four public hearing will be held in May. Written comments must be filed by July 19, 2019. The final regulations are scheduled for the Fall 2019.
While these proposed changes to the MCP are proceeding through the administrative review process, MassDEP will be drafting a second regulatory reform package to set a Maximum Contaminant Level (MCL) for PFAS in the drinking water standards for public drinking water systems in 310 CMR 22.00. MassDEP initiated the process for establishing a new MCL for drinking water by soliciting input from stakeholders.
The first meeting of MassDEP’s PFAS MCL stakeholder group was last Thursday, April 11, 2019 at MassDEP Headquarters in Boston. John Shea participated in the stakeholder meeting. Based on the representations at the stakeholder meeting, MassDEP is planning to conclude the rule-making process and establish a formal MCL during the coming winter (2019-2020). The intent is for the MCP and MCL process to be complimentary.
The evolving standards for regulating PFAS pose serious concerns for water suppliers, developers, industrial actors, and municipalities. We will continue to track regulatory developments with PFAS at the state and federal level.