PFAS remains a focus of many of the New England states’ environmental agencies and legislatures. Canada seems to be taking a more contemplative approach. The impacts of regulatory developments in 2019 on biosolids management markets have been dramatic. Costs in New England have recently doubled in some instances. Concord New Hampshire (population 43,000, ~7,500* wet tons of Class A alkaline-stabilized biosolids/year) will likely spend $500,000 more this year for solids management, compared to 2018. (*Corrected from the NEBRAMail of Jan. 24, 2020, which incorrectly stated “15,000.”)

Here’s a state-by-state synopsis of developing regulations and legislation:

Maine
The Maine Department of Environmental Protection (MEDEP) took drastic steps on PFAS, significantly impacting biosolids management and markets in 2019. Bulk land application programs on farms were the most severely limited by the newly imposed biosolids PFAS screening standards. Although the distribution of many biosolids products were allowed to continue based on loading rate calculations, the permits are only to June of 2020. There has been no formal announcement from MEDEP about what will happen after that, although staff have said that they will be sending out letters in the next couple of months alerting biosolids managers that, going forward, they will be required to sample for certain PFAS compounds twice annually and update loading rates accordingly; sampling and analysis plans will need to be updated to reflect these changes. Past MEDEP statements have indicated that the standards, which NEBRA and others have argued are inappropriate for biosolids, will remain in place.

Meanwhile, the Maine legislature addressed PFAS in food packaging, passing LD 1433 in 2019, which allows MEDEP to prohibit the use of food packaging materials that contain PFAS, certain heavy metals, and/or phthalates, if an alternative is available. Any prohibitions on PFAS in specific food packaging can not take effect until January 1, 2022 or two years after an alternative is identified by MEDEP. And one Maine bill addressing broader regulatory policy, LD 1781, is causing some controversy. It would allow the Board of Environmental Protection to make routine changes through Routine Technical Rulemaking to Federally-based screening levels for the beneficial use of solid waste.

Massachusetts
NEBRA is working with NEWEA to see if a representative of the clean water community can be formally included in the list of representatives on the “interagency task force to review and investigate water and ground contamination of per- and polyfluoroalkyl substances across the Commonwealth,” which would be created by House Bill 4256. Meanwhile, the Massachusetts Department of Environmental Protection (MassDEP) has started the formal process of setting an Maximum Contaminant Level (MCL) for drinking water at 20 ppt for the sum of 6 PFAS (which means an average of ~3 ppt each – very low standards!). The public comment period is open until Friday, Feb. 28th. See https://www.mass.gov/regulations/310-CMR-22-the-massachusetts-drinking-water-regulations.

In December, MassDEP finalized it site-cleanup MCP regulations, setting a groundwater cleanup standard for the highest use sites (residential) at 20 ppt for 6 PFAS combined. Research shows home drinking water wells on Cape Cod that are impacted only by neighbors’ septic systems have PFAS levels in the teens – very close to that new cleanup standard. It is unclear if MassDEP expects to find biosolids and septic system sites to be hazardous waste sites now, if they are in drinking water zones and the groundwater is above 20 ppt for 6 PFAS combined.

New Hampshire
We are not aware of any bills on wastewater and biosolids before the NH General Court. The immediate focus is drinking water standards and funding. In mid-January, an amended bill, SB 287, which would set into law drinking water MCLs for PFAS, passed a Senate Committee and is moving fast. It is driven, in part, by the fact that the same MCLs, which were adopted last fall, have been put on hold by a court challenge, which NEBRA supported. The court found that likely, the NH Department of Environmental Services (NHDES) will need to complete the required cost-benefit analysis associated with imposing these lowest-in-the-nation MCLs. NEBRA and others urged the Legislature to let the court process continue and have NHDES complete the analysis that the Legislature had told to them to, but the Senate Committee voted 5 – 0 to move the SB 287 to the full Senate, which is likely to vote on it January 30th.

PFAS remains a focus on half a dozen bills, including House Resolution 12, which would send a message to the U. S. Congress urging listing of PFAS as hazardous under the Superfund law – an action that could create large liability for municipalities and utilities unless some form of exemption is included. Two bills that NEBRA can support because they might reduce the PFAS our members need to manage, are HB 1446, which would create a committee to study the possible labeling of products containing PFAS, and HB 1425, which would create a study of alternatives to PFAS in food packaging.

Fortunately, the same Committee is sympathetic to the need for funding to support local testing and actions on PFAS. Even as they moved to put the PFAS drinking water MCLs into law, they pledged to back SB 496, which would provide 40% funding for PFAS-related projects at local facilities. This bill was developed, in part, and has the strong backing of the NH Municipal Association. As Barbara Reid of NHMA eloquently noted in the Senate hearing on SB 287, the difficulty with imposing very strict limits on local utilities without providing funding, is that those who are being impacted already because of PFAS contamination are then being asked to pay for the remedy.

NEBRA has argued repeatedly (https://news.bloombergenvironment.com/environmental-due-diligence/insight-the-costs-to-your-community-of-chasing-background-levels-of-pfas) that the costs of addressing trace levels of PFAS in wastewater and biosolids and elsewhere should not be borne by local utilities, ratepayers, and citizens. There is a large cost difference between drinking water standards set at the 70 parts per trillion of U. S. EPA’s public health advisory for PFOA and PFOS and the teens of parts per trillion of New Hampshire’s new MCLs. NHDES estimates nearly $300 million to comply, just for drinking water and a few wastewater utilities. If all impacts to waste and wastewater management are included, the estimate could be two or three times greater. SB 496 is a step in the right direction, but still leaves sizable costs on communities and diverts funding from other possible public health and environment initiatives. NEBRA continues to urge full consideration of the costs and benefits. See “NEBRA comments: NH Senate ENR Committee” under “more details” at https://www.nebiosolids.org/pfas-biosolids.

Finally, in accordance with a law established in 2019, DES has published its plan to develop surface water standards for PFAS. As with MCLs, DES has never done this before. The plan is at https://www4.des.state.nh.us/nh-pfas-investigation/?p=1183.

Vermont
Vermont’s Department of Environmental Conservation (DEC) is supposed to finalize drinking water MCLs in the 20 ppt range this winter. They already have groundwater standards at 20 ppt for 5 PFAS combined (~4 ppt for each individual PFAS). DEC measurements of PFAS in monitoring wells below long-term biosolids land application sites showed levels mostly below the 20 ppt groundwater standards, but a few above. Now what? DEC has not halted use of those land application sites yet. The levels are somewhat elevated, but not like fire-fighting sites, for example. In addition, determining the source of elevated levels at farm sites is complicated by various agricultural activities; it may or may not be biosolids.

Meanwhile, the legislature is considering a new bill – House Bill 658 – that would prohibit land application of any septage or biosolids other than Exceptional Quality biosolids. It has been referred to the Committee on Natural Resources, Fish, and Wildlife; a hearing date has not been set.

Federal Legislation of Note (from NACWA News)
As anticipated, on Friday, January 10 the US House of Representatives voted to pass major legislation to regulate PFAS. The final package, H.R. 535, the PFAS Action Act of 2019 passed the House with a vote of 247-159, with overwhelming support from the House Democratic majority.

H.R. 535 is now pending action in the Senate. However, the Senate Republican majority has identified several concerns with the bill and indicated it will not be advanced in its current form this year. For starters, Congress just passed into law on a bipartisan basis in December 2019 numerous PFAS provisions as part of the 2019 National Defense Authorization Act (NDAA). The Senate's own PFAS package had broad bipartisan support and many of its provisions became law through the final NDAA, leading Senators to argue that the difficult negotiations on PFAS this Congress are complete. Further, many Senators strongly oppose the H.R. 535 package because it circumvents US Environmental Protection Agency's (EPA) regulatory process by mandating certain actions under several environmental statutes, includng the CERCLA/Superfund law. See the complete NACWA article. .

EPA Actions On PFAS
In December, U. S. EPA announced several actions, as part of the PFAS Action Plan. The following “highlighted actions” are germaine to biosolids and wastewater management:

• EPA has issued an advanced notice of proposed rulemaking that would allow the public to provide input on adding PFAS to the Toxics Release Inventory toxic chemical list.

• A supplemental proposal to ensure that certain persistent long-chain PFAS chemicals cannot be manufactured in or imported into the United States without notification and review under TSCA is currently undergoing interagency review at the Office of Management and Budget.

• EPA is exploring data availability and research to support the development of Clean Water Act human health and aquatic life criteria for certain PFAS.

• EPA is examining available information about PFAS released into surface waters by industrial sources to determine if additional study is needed for potential regulation.

• EPA is in the early scoping stages of risk assessments for PFOA and PFOS in biosolids, to better understand any potential health impacts.