Tag: PFAS

EPA ISSUES NEW PFAS DRINKING WATER HEALTH ADVISORIES

How Low Can You Go?

The United States Environmental Protection Agency (“EPA”) released four new drinking water health advisories for per- and polyfluoroalkyl substances (“PFAS”) on June 15, 2022. 

NEW EPA Drinking Water Health Advisory Levels
Chemical Lifetime Health Advisory Level (ppt) Minimum Reporting Level (ppt)
PFOA 0.004 (Interim) 4
PFOS 0.02 (Interim) 4
GenX Chemicals 10 (Final) 5
PFBS 2,000 (Final) 3

In 2016, EPA issued a health advisory setting lifetime levels for PFOA and PFOS of 70 ppt. These 2022 new levels are significantly stricter and, as EPA warns, “are below the levels at which analytical methods can measure PFOA and PFOS.” These levels are also significantly below the maximum contaminant level (“MCL”) of 20 ppt for six PFAS chemicals (the “PFAS6”) set by the Massachusetts Department of Environmental Protection (“MassDEP”) in 2020. MassDEP’s PFAS6 include PFOA and PFOS but not GenX chemicals or PFBS. Although EPA’s health advisories are “nonenforceable and non-regulatory,” they can have the potential to influence additional regulatory responses from state authorities.

The new PFOA and PFOS health advisory levels are based on human studies in populations exposed to these chemicals, while the GenX chemicals and PFBS levels are based on animal studies following oral exposure to these chemicals. The PFOA and PFOS levels are interim while the EPA Science Advisory Board reviews EPA’s analyses, but “EPA does not anticipate changes that will result in health advisory levels that are greater than the minimum reporting levels.” EPA’s lifetime health advisories for GenX chemicals and Perfluorobutanesulfonic acid (“PFBS”) are final and are based on final EPA toxicity assessments completed in 2021.

If water sampling results exceed the health advisory levels, EPA recommends that drinking water suppliers undertake additional sampling to assess the level, scope, and localized source of contamination, work with state authorities to ensure compliance with state regulations, inform customers about PFAS levels in their drinking water, and take steps to limit exposure. EPA has published a separate fact sheet for public water systems.

“Show Me the Money”

In addition to the regulatory “stick,” EPA will provide a funding “carrot.”  EPA has invited states and territories to apply for the first $1 billion of Bipartisan Infrastructure Law grant funding to address PFAS and other emerging contaminants in drinking water.  The new funding comes from the Emerging Contaminants in Small or Disadvantaged Communities Grant Program and can be used to reduce PFAS in drinking water in communities facing disproportionate impacts. EPA will issue guidance later this year detailing eligible uses for the funds and providing more information on how water systems can apply for funding.

The new regulatory escalations have major implications for public water suppliers, private well users, MCP sites, and regulatory agencies.  MassDEP will review the advisory data, may participate in the Science Advisory Council review, and could consider revisions to the MassDEP ORSG advisory and drinking water and site cleanup regulations.  The water supply community and LSPs will face more uncertainties and challenges about how to cope with “Forever Chemicals”:  finding testing laboratories with certified analytical methods to measure parts per quadrillion, searching for cleanup technologies to remove quantum concentrations, and engaging in challenging public communications with customers, the general public, and the media about lifetime risks from very small exposures.

RETURN TO THE PFAS ZONE

Just as Jordon Peele is bringing back the haunts and chills of the off-kilter world of the Twilight Zone for Season 2, Massachusetts finds itself being unwittingly drawn deeper into another PFAS Zone rerun.

Without going through a formal public rule making process, MassDEP is once again digging into its regulatory grab-bag to impose unprecedented requirements on industrial actors and permittees in the Commonwealth. In recent draft surface water discharge permits MassDEP issued to Shire Human Genetic Therapies and Genzyme Corporation, MassDEP unilaterally imposed new PFAS monitoring obligations. Though the draft permits acknowledge that “Massachusetts Surface Water Quality Standards do not include numeric criteria for PFAS,” the Department cites 314 CMR 4.05(5)(e) for the “narrative” criteria that “[a]ll surface waters shall be free from pollutants in concentrations or combinations that are toxic to humans, aquatic life or wildlife.”

While the Department’s push to use its regulatory authority to address the prevalence of PFAS in the environment is understandable, using the Office of Research Standards’ Guidelines as a means to backdoor stringent effluent standards on NPDES permittees imposes burdens on individual industrial facilities without any benefit of public notice of a changed regulatory landscape. While Massachusetts Administrative Procedures Act, M.G.L. c. 30A, does not impose a formal requirement that MassDEP perform a full cost-benefit analysis before promulgating regulation, M.G.L. c. 30A, § 5 directs agencies to state the fiscal impact of the proposed regulation on the public and private section for the first and second year as well as the first five years. Rolling out new regulatory initiatives in permit renewals side-steps this requirement to disclose the direct expense of imposing stringent PFAS monitoring criteria on industrial facilities. It also limits a permittee’s time and ability to plan for capital allocations that might be necessary to address or abate otherwise permissible discharges.

Given the prevalence of PFAS and its pre-cursors in a great range of industrial applications, the likelihood that any specific discharge may exhibit some concentration of PFAS is extremely high. That the discharge levels can be mitigated or eliminated either through changed industrial processes or at the discharge point is unknown. Advancing regulatory programs in a public and orderly fashion, not only allows industry to understand what risks and costs they may face, it also spurs innovation in remedial technologies. In contrast, MassDEP’s ad hoc approach is going to cast permittees into a thicket of monitoring requirements and eventually noncompliance for exceedances that do not have proven cost-effective treatment alternatives at this scale. While the regulatory limits for surface water discharges have not been established, the only allowance the draft permits provide for terminating the monitoring requirement is four (4) consecutive quarterly samples being measured at the nano-gram per liter sensitivity “reported as non-detected for all six PFAS compounds.” That is an infinitesimally low bar that few facilities will be able to meet. The one immediate reprieve is the lack of a public EPA multi-lab validated method for testing wastewater.

During the Trump administration, environmental concerns have been given short-shrift at the federal level and inter-governmental cooperation is at a low ebb. Earlier this summer, Massachusetts submitted a public comment letter to EPA on the proposed 2020 Multi-Sector General Permit requesting that EPA add a requirement for annual PFAS monitoring for 13 industrial sectors regulated by the MSGP, which will likely be rebuffed as the two regulatory agencies struggle to find common ground on the administration of CWA NPDES permits. While MassDEP is probably correct to hedge its bet that EPA is not going to salute its proposal to include PFAS monitoring in the MSGP, the Department should not attempt to achieve the same aim by ambushing permittees seeking routine renewals.

The last time we wrote about MassDEP leading drinking water suppliers into the PFAS Zone of demanding remedial action despite a lack of formal regulatory standards was May 2019. In the intervening period, MassDEP slow-walked its MCP and MCL rulemaking process while publically stating that its other regulatory programs were going to have to wait for the Department to assess and determine the specific regulatory thresholds that were appropriate for those activities. Rather than foster the public dialogue that comes with proper administrative procedures and deliberate rule-making, MassDEP is imposing new permit conditions by fiat.

Under the Massachusetts Clean Water Act, M.G.L. c. 21, §§ 26-53, MassDEP has broad discretion to implement water quality regulations. As the SJC noted in Friends & Fishers of Edgartown Great Pond, Inc. v. Dep’t of Envtl. Prot., 446 Mass. 830, 838 (2006), “The statutory purpose of the Act, expressed through its text, makes it clear that the department has the discretion to create regulations that will best preserve and also restore the quality of our waters.” If MassDEP has science-based regulations it wants to promulgate regarding PFAS in surface water bodies, it should harness its internal expertise and publish its regulatory framework with proper technical support and weather the scrutiny of a proper administrative procedure. The regulation will likely be upheld under the Department’s broad discretion, but the rulemaking process will promote better dialogue among MassDEP and the regulated community while helping to foster strategies for achieving compliance rather than fear of enforcement.

Though we will have to wait on a formal opportunity to issue public comments on any proposed Surface Water Quality Standards, interested parties may comment on the two draft 401 certifications and State permits issued to Shire Human Genetic Therapies and Genzyme Corporation. The deadline is Thursday, August 13, 2020.

Written comments may to be submitted by email to npdes@mass.gov, or by regular mail to:

Xiaodan Ruan
MassDEP Surface Water Discharge Program
Bureau of Water Resources
1 Winter Street – 5th Floor
Boston, MA 02108.

Mention Shire Human Genetic Therapies or Genzyme Corporation in the subject line of your email or the reference line of your letter.

If you want to discuss the implications of the development on your permits or collaborate on a comment letter, contact us at Mackie Shea Durning, PC.


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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.

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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Environmental Law Update – Spring 2019

Emerging Contaminants: MassDEP has proposed reportable concentrations and clean-up standards for perfluoroalkyl compounds in the Massachusetts Contingency Plan, 310 CMR 40.0000 et seq. (MCP).  Written comments must be filed by July 19, 2019.  The final regulations are scheduled for the Fall, 2019.

Climate Change: Following up on an April, 2018 policy announcement, the EPA proposes to adopt regulations that would treat carbon dioxide emissions from power plants using managed forest biomass as carbon neutral.  

Renewable Energy: The Massachusetts Department of Energy Resources (DOER) has proposed regulations to revise the Class I and Class II Renewable Energy Portfolio Standard (RPS) regulations, including revisions to the efficiency standard for certain woody biomass to qualify for Class 1 Renewable Energy Certificates (RECs).

Solid Waste:  During 2019, the MassDEP will continue to hold Solid Waste Advisory Committee meetings to arrive at a draft 2020 Solid Waste Master Plan.  Subcommittees that will also be meeting include the source reduction, organics and C&D Subcommittees. In this connection, in February MSW Consultants provided the MassDEP with its final Massachusetts Materials Management Capacity Study which is intended to inform the development of the 2020 Master Plan.

NPDES: In April, the EPA issued an Interpretative Statement on Application of Clean Water Act National Pollutant Discharge Elimination System to Releases of Pollutants from a Point Source to Groundwater, in which the Agency concludes “that the CWA is best read as excluding all releases of pollutants from a point source to groundwater from NPDES program coverage. regardless of a hydrologic connection between the groundwater and jurisdictional surface water.” It will remain to be seen whether or not this interpretation will quell the conflict among the federal Circuits over the issue, highlighted last September when the Massachusetts District Court dismissed a citizen’s suit alleging violations of the NPDES program by Casella Waste Systems’ discharge of contamination to the groundwater at the Southbridge landfill in Toxics Action Center, et. al. v. Casella Waste Systems, Inc., et. al.  Hopefully, the United States Supreme Court will answer the question of NPDES jurisdiction when it takes up County of Maui, HI v. Hawaii Wildlife Fund on appeal from a Ninth Circuit decision extending jurisdiction to discharges to groundwater. 

MassDEP Issues New Health Advisory for PFAS

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.

For questions, contact Tom Mackie, John Shea, or Peter Durning.

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“SUPERFUND IS SEXY AGAIN.”

According to a senior US EPA official, “Superfund is sexy again.” Newly discovered health risks attributed to so-called “emerging contaminants” are causing federal and state agencies to revisit long closed Superfund sites and evaluate the environmental and human health risks at myriad new locations.  These ubiquitous environmental contaminants, including perfluoronated compounds and 1,4-dioxane, present a significant risk to human health at very low concentrations.  So much so, that US EPA Administrator, Scott Pruitt, recently held a Leadership Summit to discuss these new emerging contaminants and develop a coordinated response across EPA regions.

The US EPA and several state environmental agencies are establishing very low guidelines or standards for these contaminants.  They are also beginning to require responsible parties to test for these chemicals at existing (and in some cases closed) state and federal superfund sites, and, if present, to develop plans to address the attendant risks.  Eventually, the government will restrict the discharge of these contaminants in waste water and the air, which will pose another significant layer of compliance headaches and expenses.   While this may be good news for government regulators, environmental attorneys and consultants, this news is bad for landowners and developers.

One of these emerging contaminants is actually comprised of an entire class known as the per- and poly-fluoroalkyl (“PFAS”) compounds, such as perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”).  Until their use was phased out in the United States over the last two decades, manufacturers used these compounds in non-stick cookware, water repellent fabrics, firefighting foams and a variety of other applications.  PFAS are often found in elevated concentrations near military bases, airports, firefighting academies, metal plating plants, landfills and manufacturing facilities where they were used.   In a perfect storm of problems for responsible parties who have to deal with these emerging contaminants, they are highly persistent in the environment, expensive to monitor and test, difficult to treat and pose potential health risks at very low concentrations.  For example, the US EPA Lifetime Health Advisory for PFOA and PFOS is 70 parts per trillion (“PPT”).

Another emerging contaminant is 1,4-dioxane.  1,4-dioxane is often found along with other industrial solvents such as TCE, but it is also present in consumer products, such as shampoos and cleaning agents.  Because of their widespread consumer use, these compounds are found just about everywhere.  For example, 1,4-dioxane can be found in private septic systems and associated groundwater.  The MassDEP groundwater clean up standard for 1,4-dioxane is 300 PPT in potential or existing water supply areas.

To date, the US EPA has not set a Maximum Contaminant Level for PFAS under the Safe Drinking Water Act.  Thus, as far as the federal government is concerned, there is no enforceable standard.  However, as a result of a number of exceedances of the Lifetime Health Advisory level found by public water suppliers when they performed required monitoring for PFAS under EPA’s Unregulated Contaminant Monitoring Rule, those water suppliers have taken action to limit public exposure.  For example, the Towns of Westfield, MA, near Barnes Air Force Base, and Ayer, MA, have both stopped using public water supply wells where detections of PFAS exceeded the Lifetime Health Advisory.  The Town of Westfield has recently filed a lawsuit against the manufacturers of AFFF firefighting foam to recover damages.

The law and regulations governing site assessments and remediation for these contaminants is still “emerging.”  While some states, such as New Hampshire, have promulgated legally binding cleanup standards for certain PFAS, others, like Massachusetts, are still in the process of developing guidance and have not yet begun the official process of establishing a legally binding regulatory standard.  In early June, MassDEP issued “Final Recommendations for Interim Toxicity and Drinking Water Values” for testing as part of the Unregulated Chemical Monitoring program.  But this Interim Guidance does not establish clear enforceable standards.  Until standards are promulgated, the question of whether or not to test for these contaminants as part of a site assessment falls to the good judgment of the professional environmental consultant.  Thankfully, most environmental consultants are sufficiently knowledgeable about the potential presence of these contaminants to design an appropriate sampling and analytical program to protect their clients.

Because PFAS are not yet consistently regulated across the states and are not defined as a “hazardous substance” under the federal Comprehensive Environmental Response, Compensation and Liability Act, (CERCLA or “Superfund”) administered by the US EPA, regulatory authority to compel assessment and remediation of PFAS varies from state to state and from site to site.  According to Regional Administrator Dunn, the Agency is reading the language of individual Superfund consent decrees to determine whether the responsible parties agreed to reopeners for only “hazardous substances,” or also for other “pollutants or contaminants,” which would encompass PFAS.  She emphasized that, at sites where the EPA concludes it does not have the legal authority to compel responsible parties to take further response actions, the relevant state may have authority to take such action.  She indicated that there has been some discord between the federal and state governments over this issue.

PFAS can be in solid waste.  The federal Resource Conservation and Recovery Act currently does not include PFAS within the definition of a hazardous waste.  Currently, only Vermont and New York states reportedly regulate PFAS as “hazardous wastes” under their parallel state programs.  Conceivably, this means that in all other 48 states, an industrial or other waste generator is not required to evaluate whether or not its waste streams contain PFAS, or make any special arrangements for storage, transportation or disposal of those wastes (such as using a RCRA permitted hazardous waste facility).  This challenges solid and hazardous waste disposal companies with the question of whether they want to handle wastes which may have PFAS, and expose themselves to the potential future worker exposure or environmental release liability that may ensue.

To make matters even more difficult, most states have not adopted surface water quality criteria, discharge or other limits, on the emissions of PFAS to water bodies, or to the air.  A few states, such as Vermont, have established policy limits on the concentrations of PFAS, which can be in landfill leachate discharged to a waste water treatment facility, but this is the exception to the rule.

These emerging contaminants present a real challenge on a number of fronts.  Because of the potentially very high cost of monitoring and remediation, prospective purchasers should first obtain clear environmental consulting guidance whether emerging contaminants should be tested for in a site assessment.  Second, in the process of performing environmental due diligence in a corporate transaction, attorneys and consultants may need to advise their clients that new site assessments be performed, including this testing, to avoid reliance on reports that pre-date the emergence of these contaminants and testing protocols.  Third, if emerging contaminants are found to have caused a very significant impact, such as loss of a water supply, consider whether or not the costs can be recovered.

Franklin’s adage that “an ounce of prevention is worth a pound of cure,” certainly applies to emerging contaminants.  Until the science is settled and the regulations are clear, there is simply too much uncertainty about the environmental and public health risks, potential liability and costs to remain ignorant about the possible presence of PFAS in whatever environmental media you are dealing with.

 

BBA and EBC welcome the new EPA Regional Administrator Alexandra Dunn

Tom Mackie and Peter Durning were honored to be a part of the Boston Bar Association and Environmental Business Council of New England’s co-sponsored program on February 15, 2018 welcoming the new EPA Regional Administrator, Alexandra Dunn.

Tom, Chair of the EBC, gave opening remarks welcoming over 200 guests from the legal and environmental consulting community to the event.

Peter, the Co-Chair of the BBA’s Energy and Environmental Law Section, provided closing remarks and a sincere thank you to Regional Administrator Dunn, following a 40-minute presentation and a robust question and answer period.

In her speech, Alex Dunn stressed the need to address core water quality concerns by focusing on nutrients in stormwater, stormwater runoff, and water infrastructure projects.  She also outlined other initiatives for her tenure as Regional Administrator, including emerging contaminants, environmental justice, interstate air shed issues, and finally closing out and potentially redeveloping the remaining Superfund sites in New England.

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

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Environmental Law Update – Fall 2017

On October 19, 2017, NH DES released a letter to Responsible Parties, Owners and Permittees of certain classes of properties to conduct testing for Per- and Poly-flouroalkyl substances (PFAS).  “Landfills (lined, unlined, active, and/or closed) that are subject to groundwater monitoring requirements” are identified as sites where NH DES will require the initial screening.  As noted in the letter, NH DES “strongly encourages stakeholders to sample and analyze, at a minimum, for the expanded list of nine PFAS analytes outline in the Guidance” provided by NH DES.

On October 18, 2017, the Rhode Island DEM established a 70 parts per trillion Groundwater Quality Standard for PFOA, PFOS or any combination of these compounds in groundwater classified as GAA or GA (groundwater suitable for drinking water use without treatment). Read More → “Environmental Law Update – Fall 2017”