The Massachusetts Department of Environmental Protection (“MassDEP”) entertained public comment on its proposed per- and polyfluoroalkyl substances (“PFAS”) drinking water standard on Friday, January 24, 2020. The proposed standard would set a new Maximum Contaminant Level (“MCL”) for six PFAS chemicals: (1) Perfluorooctane sulfonate (PFOS); (2) Perfluorooctanoic acid (PFOA); (3) Perfluorodecanoic acid (PFDA); (4) Perfluoroheptanoic acid (PFHpA); (5) Perfluorohexanesulfonic acid (PFHxS); and (6) Perfluorononanoic acid (PFNA). The MassDEP proposed 20 parts per trillion (“ppt”) for total PFAS levels in Massachusetts public water systems. The MCL will apply to Community Water Systems and Non-Transient, Non-Community Water Systems (which includes large businesses with at least 25 employees, schools, and daycares). The MCL will not apply to Transient, Non-Community Water Systems (which includes recreational areas and hotels) and Consecutive Systems (which are systems that purchase their water).
Monitoring and testing for PFAS levels in public waterways will be conducted in three waves, with the first wave of testing set to begin on April 1, 2020 and the last beginning on October 1, 2021. After this initial phase, routine monitoring is required with a minimum reporting requirement for any water system with PFAS detection above 2 ppt for the six PFAS in the MCL. Additionally, any water systems found to have PFAS levels in excess of the 20 ppt MCL triggers a mandatory consumer notification requirement.
Comments at the public hearing included concern that the proposed standard only regulates six of the over 4,000 varieties of PFAS chemicals. Others were concerned that, while the 20 ppt MCL is a much-needed step, this level is still too high to fully address the health risks associated with PFAS exposure. Experts present at the hearing asked the MassDEP to incorporate a five-year reevaluation requirement to ensure that the drinking water standard continues to reflect the best available science. Interestingly, the standard is heavily focused on testing for PFAS contamination and reporting that contamination to consumers and the MassDEP but little is being said regarding clean up requirements once contamination is reported.
Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact any of our PFAS – Toxic Torts Team: Jessica Deyoe, Suzanne Englot, Alexandra Fraher,or John Gardella.