PFAS Testing – Coming Soon to a Massachusetts Public Water System Near You

Thursday, February 13, 2020

Per- and Polyfluoroalkyl Substances, “PFAS,” are man-made chemicals that have been used since the 1940s in a variety of industrial and consumer products ranging from fire-fighting foam to food-related non-stick coatings to dental floss and ski wax. Because PFAS are so common, the Agency for Toxic Substances and Disease Registry (ATSDR) reports that most people in the United States have PFAS in their blood. In recent years, concerns have arisen regarding a range of possible health effects resulting from exposure to PFAS, including adverse fetal and neonatal development, liver and thyroid damage, and endocrine disruption. 

While research into possible health effects continues, on December 27, 2019, Massachusetts proposed revisions to the drinking water regulations at 310 CMR 22.00 to establish a drinking water standard (MCL) of 20 parts per trillion for the sum of six specific PFAS. The proposed regulation can be accessed here. The public comment period runs through February 28, 2020. 

The proposed regulations, 310 CMR 22.07G, will not only establish an MCL but will also create new monitoring and reporting obligations for all Public Water Systems even when the MCL is not exceeded. According to the Massachusetts DEP, Public Water Systems in Massachusetts include 526 Community Water Systems, such as municipalities, trailer parks, apartments/condominiums, and prisons that serve residential customers year-round; 252 Non-Transient, Non-Community Water Systems (NTNCs), such as schools, daycares, and larger businesses serving 25 or more of the same non-residential people each day; and 865 Transient, Non-Community Water Systems (TNCs), such as recreational areas, campgrounds, hotels and motels, and small businesses. 

The deadlines for commencing testing will depend on the type and size of the system. Systems supplying water to more than 50,000 individuals will be required to begin initial monitoring on April 1, 2020, with subsequent deadlines of October 1, 2020, for systems supplying to fewer than 50,000 but more than 10,000 individuals, and October 1, 2020, for systems supplying to 10,000 or fewer individuals. Transient, Non-Community Water Systems will be required to perform more limited sampling no later than September 30, 2022. 

Although the MCL will apply to the sum of six specific PFAS, the proposed regulations will require Public Water Systems to report all analytical results for all PFAS. Depending on the analytical method, that will mean analyzing for 14 or 18 specific compounds. And monitoring frequency will depend not simply on whether the MCL is exceeded. The proposed regulations set out thresholds and schedules for initial monitoring, routine monitoring, and more frequent monitoring if any PFAS are detected. 

The proposed regulations also include public notice requirements to all persons served by the affected Public Water System when the average of a sample and a second confirmatory sample exceeds the MCL. 

Compliance with the proposed regulations will be a challenge because PFAS are ubiquitous and the MCL is set at a concentration of parts per trillion. (By comparison, the MCL for benzene is 5 parts per billion which is equal to 5000 ppt). Sampling will entail special procedures, specially prepared sample containers, and securing a qualified laboratory. Laboratory fees can run in the range of $275-$300 per sample and in-state laboratory options are limited. A Public Water System cannot assume that its usual analytical laboratory will be approved to perform the analysis, and particular care will need to be taken during sampling to avoid cross-contamination. Illustrating how much of a departure PFAS sampling will be from past practices, DEP’s Field Sampling Guide for PFAS includes a comprehensive list of do’s and don’ts relating to field clothing, personal protective equipment, and field equipment (e.g., no clothing or boots containing Gore-Tex®, no Teflon® [aka PTFE] or LDPE materials, no waterproof field books, no Sharpies or permanent markers). 

And what about water systems requiring treatment? The proposed regulations focus primarily on sampling and reporting, but the potential for treatment of PFAS-impacted water is real. According to DEP, “Granular activated carbon (GAC), ion-exchange resin, and reverse osmosis (RO) filters have been shown to be effective in removing PFAS. The type of treatment technology you will need depends on the specific PFAS compounds and their levels in the source water. A pilot study will be required prior to installing treatment.” 

Our understanding of the impact of PFAS on human health and the environment continues to develop but monitoring is coming to Massachusetts Public Water Systems and compliance will not be easy or inexpensive. Public Water Systems need to verify that their vendors have the necessary sampling and analytical capabilities, and budgets almost certainly will need to be revisited. 

For more information: 

An overview of PFAS chemistry, potential health effects, and sources of PFAS in the environment can be found in Mass. DEP’s “Interim Guidance on Sampling and Analysis for PFAS at Disposal Sites Regulated under the Massachusetts Contingency Plan.”

Information for Public Water Suppliers can be found here.

"Navigable Waters Protection Rule" Narrows Federal Clean Water Act Permitting Authority

Tuesday, February 11, 2020

On January 23, 2020, the U.S. Environmental Protection Agency and the Army Corps of Engineers finalized the Navigable Waters Protection (NWP) Rule, which redefines what waters are considered "navigable" and therefore regulated under the Clean Water Act (CWA). The final rule replaces the much-litigated Obama-era "Waters of the United States" (WOTUS) rule that was rescinded by the Trump administration in September 2019, as well as the case-specific "significant nexus" test enunciated by U.S. Supreme Court Justice Kennedy in Rapanos v. U.S. (2006) and subsequently issued agency guidance.

The NWP Rule substantially narrows the definition of "jurisdictional" waters to include only:

  • Territorial seas and traditional navigable waters
  • Perennial and intermittent tributaries that in a typical year flow to territorial seas and traditional navigable waters
  • Wetlands that are directly adjacent to jurisdictional waters
  • Lakes and ponds that are or contribute flow to navigable waters or are inundated by flooding from a jurisdictional water in a typical year and impoundments of jurisdictional waters

Excluded from federal jurisdiction are several categories of waters, including:

  • Groundwater and surface water features connected only by groundwater to jurisdictional waters
  • Interstate streams
  • Ephemeral streams, swales, gullies, rills, and pools; i.e., that fill only in response to rainfall
  • Diffuse stormwater run-off and sheet flow
  • Many ditches, including most farm and roadside ditches
  • Artificially irrigated areas and artificial ponds and lakes, such as farm and stock watering ponds
  • Prior converted cropland
  • Waste treatment systems

The NWP Rule becomes effective on March 23, 2020. Agricultural groups and the National Association of Home Builders have embraced the NWP Rule, praising its clarity and consistency. Environmental groups sued the Trump administration when it rescinded the WOTUS rule and a number are currently planning to take legal action against the NWP Rule.

For the time being, finalization of the NWP Rule means that the entire U.S. is now covered under a single regulation, whereas a welter of litigation had resulted in half the country being covered by the WOTUS rule and the other half operating under the predecessor to the WOTUS rule. However, it can be anticipated that the new rule will be vigorously contested nationwide, with the possibility that it will eventually come before the U.S. Supreme Court.

Most states, except for Idaho, Massachusetts, New Hampshire, and New Mexico, have been delegated CWA authority. Regulatory agencies in delegated states may continue to administer and enforce state regulations that define protected waters more broadly than the NWP Rule.