January 29, 2019

MassDEP Issues Decision on PFAS Petition While Feds Reportedly Will Punt

Holland & Knight Energy & Natural Resources Blog
Dianne R. Phillips

On Jan. 28, 2019, the Massachusetts Department of Environmental Protection (MassDEP) issued its response to the "Petition for Rulemaking to Establish a Treatment Technique Drinking Water Standard for Per- and Polyfluoroalkyl Substances" filed by Conservation Law Foundation (CLF) and the Toxics Action Center pursuant to MGL c. 30A, § 4 and 310 CMR 2.00. As described in a prior blog post, the petitioners seek adoption of a treatment technique standard for drinking water which is protective of the public, which petitioners believe should be 1 part per trillion (ppt) for each PFAS compound as a class. Alternatively, they request MassDEP to immediately adopt an enforceable standard of 20 ppt (similar to Vermont) for the sum of the five PFAS compounds for which MassDEP has already issued guidance albeit at 70 ppt. Lastly, petitioners seek increased transparency, community involvement and additional sampling data so the public can be advised as to the risks in their communities.

In response to the petition, MassDEP held a public meeting at which 71 participants attended and 21 stakeholder offered formal comments. In addition, MassDEP reports that over 80 people watched via online streaming. Forty-five different individuals and organizations filed written comments prior to the Jan. 17, 2019 deadline embodying a range of views both in support and in opposition to the petition.

MassDEP responded by the regulatory deadline by posting its response on Jan. 28, 2019. In its 11-page response, MassDEP summarizes the petitioners' request, describes its responsibility for ensuring public water systems in Massachusetts are safe, recites its understanding of PFAS background, including what other states are doing, describes its own activities undertaken over the last year to address PFAS concerns (which are quite substantial), and outlines its future plans. Specifically, MassDEP will initiate the process pursuant to all applicable statutes, regulations, rules and executive orders for development of a PFAS drinking water maximum contaminant level (MCL). Specifically, MassDEP will focus on those PFAS compounds where a threat to human health has been identified, analytical methods exist for their detection, and appropriate treatment technologies are available. These compounds are identified as PFOA. PFOS, PFHxS, PFHpA and PFNA. With respect to petitioners' specific requests, all MassDEP says is that Vermont's standard will be evaluated as part of the process and MassDEP will invite public comment on whether petitioners' approach of a treatment technique for the entire class of PFAS chemicals is appropriate.

In addition, MassDEP will proceed with development of reportable concentrations and cleanup standards for PFAS as revisions to the Massachusetts Contingency Plan (MCP), a process which was begun last year with draft regulations anticipated in 2019 according to a recent presentation by MassDEP officials. In addition, as of January 2019, all requests for new or renewed Approvals of Suitability (AOS) for land application of sludge and septage for beneficial purposes under 310 CMR 32.00 will now require sampling for PFAS.

All of this activity and effort comes on the heels of today's Politico article reporting that EPA intends to issue a memorandum stating that it has decided to decline to regulate PFOA and PFOS, the two PFAS compounds which EPA previously determined to be toxic in its 2016 health advisory and for which it convened a national summit on May 22-23, 2018. If Politico's report turns out to be true, then we can expect many more states to follow Massachusetts' lead with developing their own MCL values. Stay tuned!

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