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.

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Drought Management Plan

Waiting to pick up our coffee orders, a neighbor and a veteran of 30 seasons as a little league coach groused that his perennial champs had no practices in April due to the heavy rains, making the fields soggy and unsafe.  Knowing my expertise as an environmental lawyer, he asked me if it was due to climate change, or is that “fake” science as POTUS claims, or is it real and the denial is one of his many lies.  I assured him that climate change is real and was recently supported in the March 4, 2019 United Nations 6th Global Environmental Outlook Report.  I told him to expect more rain in May and extreme weather conditions like the severe drought we experienced in 2016, and suggested the baseball season be scheduled for warmer months.

If I had more time, I would have educated him on the 2019 revised Drought Management Plan (“DMP”) prepared by the Massachusetts Water Resources Commission.  Massachusetts is relatively water-rich with annual precipitation averaging 48 inches a year, ranging from 31 to 61 inches.  There were 6.9 inches of rainfall on the baseball fields in April 2019 (the norm is 3.9).  Annual precipitation in Massachusetts is expected to rise as a result of climate change and extreme precipitation events are on the rise.  However, large storms do not mean significant groundwater recharge or steady stream flows.  They mostly result in localized flooding and rapid stormwater flows.

Massachusetts has suffered major droughts over the years, including 2016-2017, which was characterized by a rapid decline in conditions from month to month, known as a “flash drought.”  The nine year drought from 1961-1969 is the most severe on record, and communities responded with water-use restrictions and emergency supplies.  I remember when Great Pond in South Weymouth turned into a mud flat, killing my favorite fishing spot.

Great Pond in Jan. 2017. Photo by Ed Baker

The 2001 DMP was developed in response to a period of low precipitation from April 1999 to March 2000.  It was revised and updated over time in consultation with the Drought Management Task Force (“DMTF”) and issued as a formal plan in 2013.  During the 2016-17 drought, the 2013 DMP was used and lessons learned.  EEA and MEMA are responsible for coordinating response efforts and communications with the public.  The DMTF has 18 members from environmental agencies and organizations, public health officials and public safety officials.  The DMTF provides a comprehensive assessment of drought situations based on six drought indices (precipitation, stream flow, groundwater, lakes and impoundments, fire danger and evapotranspiration), establishes four index severity levels, forecasts of rain and temperature, and updates the DMP as needed.

MassDEP has significant responsibilities through its Water Management Act (“WMA”), Drinking Water, and Wetlands programs to oversee water supplies, allocations and resource protection.  MassDEP imposes water conservation measures and water use restrictions in withdrawal permits under the WMA.  Each permit holder must develop a water conservation program to comply with Water Conservation Standards, and a Water Loss Control Program.  In a declared water emergency, MassDEP may require a public water supplier to submit a plan with provisions for shutting off water, upgrades to WMA conservation measures, loss control plans, audits, system rehabilitation, building permit moratoria, and bans or restrictions on certain water uses (e.g., don’t water the ballfields).

The Massachusetts Water Works Association comments on the 2019 draft revisions to the DMP argue for local, systems-specific Water Resiliency or Drought Response Plans instead of mandates from the state DMP.  There is no one-size-fits-all Drought Plan.  Water suppliers assert that drought declarations must be based on scientific facts and not subjective judgment from non-water supply professionals.  Water suppliers want the DMP to encourage the development of new sources to provide redundancy opportunities and to increase the resiliency of the water supply systems.  The DMP should discuss the development of new or supplemental sources, rather than focus exclusively on conservation and restrictions.

The DMP is considered to be a living document to be updated and revised based on experiences.  The DMP is a critical component in tackling climate change impacts on water supplies: more extreme weather events from storms and droughts.