MassDEP Seeks to Impose Its PFAS Monitoring Requirements in NPDES Permits

On July 14, 2020, the Massachusetts Department of Environmental Protection (MassDEP) issued a public notice regarding Shire Human Genetic Therapies' Cambridge facility's pollutant discharges to the Alewife Brook, along with a public notice for Genzyme Corporation's discharge to the Charles River and two other facilities that also have pending draft individual National Pollutant Discharge Elimination System (NPDES) permits. These notices come just weeks after the U.S. Environmental Protection Agency (EPA) terminated its joint NPDES permitting arrangement with MassDEP as described in this notice sent out by MassDEP to permittees. It also comes in the wake of MassDEP's letter dated June 1, 2020, urging the EPA to add an annual monitoring requirement for perfluorooctane sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) to certain Sector requirements in the 2020 Issuance of the Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP), which is anticipated to be issued later this year (See previous Holland & Knight blog, "MassDEP Requests EPA Add PFAS to Monitoring Requirements Under the 2020 MSGP," June 8, 2020).

All four public notices are substantially similar and seek public comment on MassDEP's proposal to issue:

• a federal Clean Water Act (CWA) section 401 certification for the EPA's proposed 2020 Draft NPDES Permit (federal permit)
• the 2020 Draft Massachusetts Permit to Discharge Pollutants to Surface Waters (state permit) for the same discharge pursuant to the Massachusetts Clean Waters Act, M.G.L. c. 21, §§ 26 – 53

The public notices include a Fact Sheet Supplement describing MassDEP's rationale for including per- and polyfluoroalkyl substances (PFAS) evaluation and monitoring requirements. MassDEP cites the Massachusetts-specific Office of Research and Standards Guideline (ORSG) and the Massachusetts regulatory narrative criterion for toxic pollutants found at 314 CMR 4.05(5)(e)2, which authorizes reliance on guidance issued by MassDEP's Office of Research and Standards where the EPA has not set human health risk levels.

Specifically, the proposed requirements contained in both the draft 401 water quality certification and the draft state permit includes a requirement to evaluate whether the facility uses any products containing any PFAS and whether such use can be reduced or eliminated. In addition, once an EPA-validated analytical method is published, permittees will be required to monitor quarterly effluent discharges for six PFAS compounds for at least a year:

1. Perfluorohexanesulfonic acid (PFHxS)
2. Perfluoroheptanoic acid (PFHpA)
3. Perfluorononanoic acid (PFNA)
4. PFOS
5. PFOA
6. Perfluorodecanoic acid (PFDA)

If four consecutive samples are reported as non-detect for all six PFAS compounds, then the permittee may submit a request to discontinue PFAS monitoring.

The public comment periods end Aug. 13, 2020, and comments should be sent electronically to npdes@mass.gov. Although not yet posted, the Massachusetts citizen access portal should provide a way to track the comments filed. Given this new approach to discharge permitting, expect a robust discussion.