BREAKING: MassDEP Announces Proposed Revisions to the Massachusetts Contingency Plan, Including a Reportable Concentration for PFAS at 20 ppt

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The Massachusetts Department of Environmental Protection (MassDEP) announced proposed revisions to the Massachusetts Contingency Plan (310 CMR 40.0000).  This begins a 3-month public comment period that will end July 19, 2019, and will include four public hearings.

According to MassDEP, the proposals include:

  • clarification and modification of provisions related to notification, Imminent Hazards, Tier Classification and Extensions, Remedial Additives, Status Reports, Remedial Monitoring Reports, Temporary Solutions, Active Exposure Pathway Mitigation Measures, Exposure Point Concentrations, Activity and Use Limitations, and public involvement;
  • new adequately regulated provisions for disposal sites with Radioactive Materials;
  • updates to Reportable Concentrations (RCs) and numerical cleanup standards (Method 1) for a limited number of chemicals; and
  • the addition of RCs and Method 1 standards for six perfluoroalkyl substances—Perfluoroheptanoic Acid (PFHpA), Perfluorohexanesulfonic Acid (PFHxS), Perfluorooctanoic Acid (PFOA), Perfluorooctane Sulfonate (PFOS), Perfluorononanoic Acid (PFNA) and Perfluorodecanoic Acid (PFDA)—emerging contaminants of concern for exposure in drinking water.

Perhaps the most meaningful and groundbreaking revision is the last – a proposed RC for PFAS.  PFAS are a family of emerging contaminants best known for their widespread use in firefighting foam and waterproofing and “non-stick” coatings.  Some observers have called PFAS a “coming tsunami” in environmental law.  Massachusetts’ experience with PFAS is not uncommon – according to MassDEP, at least 14 Massachusetts public water sources have had PFAS detections to date.  Expect more detections as standards are set and testing becomes more widespread.

A further primer on PFAS will have to wait for another post, but the takeaway is that MassDEP has set an aggressive RC of 20 parts per trillion (0.02 ug/L, or ppt) for six PFAS chemicals combined.  By way of comparison, in May 2016, the U.S. Environmental Protection Agency (EPA) issued a lifetime Health Advisory of 70 ppt for the combination of two PFAS chemicals, PFOS and PFOA, in drinking water.  More than two dozen other states have proposed rules addressing PFAS in various forms, although only New Jersey has set a binding drinking water standard of 13 ppt for PFNA.  Massachusetts will shortly join that list.  In addition to establishing an RC for PFAS under the MCP, expect a revised drinking water guideline to follow from MassDEP shortly.

Follow these pages for more updates as this story and public comment and hearing process unfolds.

About David McCay

Dave is a partner in the firm’s litigation and land use groups where he assists clients in the resolution of complex real estate, environmental and business disputes. He also represents property owners, developers and municipalities in local land use permitting matters. Dave is active in the Boroughs+ region serving recently as the Chair of the Southborough Economic Development Committee and of the Marlborough Regional Chamber of Commerce. He is also a member of the Board of Directors of the 495/MetroWest Partnership and the Marlborough Economic Development Corporation. Outside of the office, Dave is an avid cyclist competing in road races and criteriums across New England. He lives in Southborough with his wife and two sons.
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