PFAS continues to drive numerous bills in New England legislatures, although the number of proposed bills and the pace of action seem to have diminished compared to 2019.

In Maine, the DEP has clarified its plans for biosolids regulations for summer 2020 and beyond. Essentially, the requirements that were put in place in the spring of 2019 will become routine going forward, in accordance with typical procedures under the Chapter 419 agronomic use regulations. This clears up the uncertainty that DEP had left in place in June last year when permits for distribution of many biosolids were allowed to proceed, but for just one year. Now, those programs are receiving letters from DEP that allow for continued biosolids use, but with the following restrictions going forward indefinitely:

  • permittees must add PFAS to their sampling plans and test regularly going forward;

  • frequency of testing is based on what they do with materials;

  • loading rate calculations must be done for any biosolids that exceed the screening standards (2.5 ppb PFOA and 5.2 ppb PFOS) and must be redone if PFAS levels change; and

  • testing site soils will be required for any long-term land application sites if the biosolids have levels of PFAS above the screening standards.

Meanwhile state agencies are measuring corn uptake of PFAS, concerned about transfer of PFAS from soil to plant to animal (e.g. cows) affecting farm products (e.g. milk), even though milk at farms that have used biosolids annually for decades has tested non-detect. Groundwater sampling at long-term land application sites, linking soil and groundwater data and biosolids application history, is planned for the spring. And Maine DEP is sampling septage as well. Maine CDC and its risk assessors are working on modeling PFAS risk through farm pathways. This scrutiny on biosolids and residuals is left over from the early stages of the PFAS scare in spring 2019, when a news conference at a farm in Arundel put the focus on biosolids, even though an industrial material is likely the source of the concerning level of PFOS at that one site. Fortunately, some of the hyped focus on municipal biosolids has attenuated, as evidenced in the Task Force final report released in January.

In the end, the past year of PFAS reactions in Maine resulted in…

  • Three Class B biosolids programs shut down because of PFAS; liquid Class B programs were the hardest hit, including those at Presque Isle and in downeast Maine;

  • Lewiston-Auburn and some other Class B programs being reduced, with numerous long-term land application fields removed from permits because of PFAS levels somewhat above one of the new screening standards; and

  • Numerous other Maine biosolids and septage management programs – including Casella’s Hawk Ridge Compost Facility – incurring substantial costs for PFAS testing and reduced sales because of last year’s moratorium and spoiled public and customer perceptions.

Class A programs have continued selling and distributing composts and heat-dried pellets (from out of state) since June 2019, and the new increased certainty about what will be required for 2020 and beyond is beginning to calm the markets. But the damage has been done, and companies, landfills, and utilities have been making decisions based on PFAS fears and liability concerns, driving more landfill disposal at higher costs and a reduction in biosolids recycling in the state that had long had the highest rate of recycling in the Northeast U. S.

In Massachusetts, the Legislature is considering creating a PFAS study group of legislators, state agency representatives, and key stakeholders. Wastewater professionals were not included in the mandated list of types of representation, and NEWEA and NEBRA are urging an amendment to ensure these water quality professionals have a seat at this PFAS table.

Meanwhile, with new, very strict PFAS site cleanup standards completed in December, MassDEP is now proposing final drinking water MCLs of 20 parts per trillion (ppt) for six PFAS combined, which would be the new lowest in the country. Comments are due by February 28th.

The biosolids program at MassDEP has issued updated requirements for testing of biosolids products for PFAS as part of the routine permit renewals for Approvals of Suitability for biosoilds products. MassDEP has approved the analytical methods (SOPs) of several commercial laboratories, clearing the way for several permit holders to proceed with sampling and analysis. Thus, data on several Massachusetts biosolids will likely become available in the next few months; they are likely to be similar to test data from New Hampshire, Maine, and other states. MassDEP has dropped the requirement to run SPLP (synthetic potential leaching) tests as part of the biosolids testing requirements.

New Hampshire’s Legislature took major steps to address PFAS in 2018 and 2019, mandating and finalizing the lowest-in-the-nation drinking water MCLs and groundwater standards. In mid-February, the state Senate voted unanimously in support of two bills:

  • codifying the new PFAS drinking water standards, which had been put on hold by a court action, and

  • providing $50 million in low-interest loans (including $5 million that would essentially be granted) for water and wastewater utilities addressing PFAS contamination.

NEBRA testified that numerical standards do not belong in law and that NHDES failed to complete the required cost/benefit analysis of the new drinking water standards. Further, the proposed loan funding bill, while appearing generous, still leaves sizable cost burdens on utilities and municipalities that will struggle to meet the new PFAS standards.

Meanwhile, NHDES has recognized the complexity and potential domino-effect implications of creating surface water quality standards in its required December 30th report to the Legislature, which lays out various options, some costing up to $4.7 million, that would possibly lead to effluent and pretreatment limits on particular PFAS chemicals.

In Vermont, a new bill would prohibit land application of Class B biosolids and septage (H.0658). However, it has not been taken up in committee and may not progress. Meanwhile, as in New Hampshire, the cost of addressing PFAS is being recognized in a new bill (H.0758) that would create the “Vermont Drinking Water Protection Fund,” supported by a “$0.15 per bottle” excise tax on “sugar-sweetened beverages.” Funding would be prioritized for monitoring and remediating PFAS in public water systems, with private systems funded as a secondary priority. Other contaminants of emerging concern would be addressed third. This bill likely faces numerous obstacles.

Meanwhile, on February 20th, U. S. EPA announced several new actions under its PFAS Action Plan:

  • The Agency proposes regulating PFOA and PFOS in drinking water, while not regulating six other contaminants on the Agency’s current Contaminant Candidate List. The proposed determination will be published soon in the Federal Register, after which there will be a 60-day public comment period. There has been a lot of pressure from Congress and the public for EPA to set maximum contaminant levels (MCLs) for PFOA and PFOS and other PFAS chemicals.

  • The Agency “issued a supplemental proposal to ensure that new uses of certain persistent long-chain PFAS chemicals in surface coatings cannot be manufactured or imported into the United States without notification and review under TSCA.”

  • The Agency “released an updated list of 172 PFAS chemicals subject to Toxics Release Inventory reporting as required by the National Defense Authorization Act for Fiscal Year 2020.”

In December, EPA released preliminary recommendations for addressing groundwater contaminated with PFOA and/or PFOS and is proceeding with the regulatory development process of listing these two chemicals as hazardous under CERCLA, the Superfund law, which will take some time. Further details: https://www.epa.gov/newsreleases/epa-announces-proposed-decision-regulate-pfoa-and-pfos-drinking-water.

However, some members of Congress and advocacy groups continue to push for faster action. A large group of Senators sent a letter to EPA February 14th, requesting an update on the Action Plan. In the House, Rep. Dingell of Michigan leads H.R. 535, the PFAS Action Act, which forces EPA to move ahead with set deadlines. The bill has passed the House and is before the Senate Environment and Public Works Committee, where it may or may not see any action. President Trump has said he will likely veto it. And Sen. Jeanne Shaheen of New Hampshire is developing a PFAS funding bill that would direct $100 million each to the drinking water and wastewater state revolving fund programs to help with local costs of addressing PFAS. WEF notes that while the intent is much appreciated, those revolving fund programs are probably not the right mechanism; further constructive discussions are expected.