MassDEP Working on a Drinking Water MCL for PFAS

Several weeks ago, I posted that the Massachusetts Department of Environmental Protection (MassDEP) proposed a new groundwater standard for PFAS contamination under the Massachusetts Contingency Plan regulations (310 CMR 40.0000).  Public comment on the proposed regulations remains open through July 19, 2019.  MassDEP’s close look at how, at what level and where to regulate PFAS continues, as it does for the Environmental Protection Agency, and state environmental agencies across the country.  With its groundwater standard in the works, MassDEP is looking to set a Maximum Contaminant Level (MCL) for public water systems (PWSs).  The focus here is less on how to remediate PFAS contamination in soil and groundwater, and more on setting drinking water standards for PFAS.  Up to this point, PWSs have not been required to test, report and remediate PFAS in drinking water.  That’s about to change. 

On April 11, 2019, MassDEP held the first in a series of stakeholder meetings aimed at promulgating an MCL for PFAS.  The video is available here, MassDEP’s PowerPoint presentation here.  I expect MassDEP will announce its next stakeholder meeting shortly.  Here are my takeaways to this point: 

  • Setting an MCL is going to be a process, and it will take some time.  To its credit, MassDEP is trying to juggle a number of concerns:  the developing toxicology and science of PFAS, the need to act promptly, and the desire to get it right, among others.  We may see a proposed MCL for PFAS in the fall.  I will be surprised if there’s an MCL in place before the end of the year.
  • Analytical feasibility is a big concern.  In setting an MCL of parts per trillion at which PWSs (including many municipalities) will be required to test, report and treat PFAS, MassDEP wants to make sure laboratories are able to reliably test at those levels. 
  • Treatment feasibility is another concern.  Once a PWS detects PFAS, MassDEP wants to know that treatment, such as carbon filtration, will work to address it.  More data and guidance at the federal level would be helpful here.
  • Open questions remain on how the MCL will be applied, to whom, and whether it will vary by class.  MassDEP is seeking input on the application of the MCL to community water systems; non-transient, non-community water systems (e.g., schools, institutions, medical facilities); and transient non-community systems (e.g., restaurants, hotels).  MassDEP is considering variable implementation of the MCL based on class, size and source water (surface vs. groundwater).

The last takeaway is how in flux all of this is.  The data is developing, federal guidance is slow in coming, public concern is growing, and policy makers are really just starting to confront the practical and financial impacts of testing and treatment for many small water systems.  One thing is for certain – none of this is going away anytime soon. 

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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