9/26/19
PFAS & Biosolids Update - Maine and New Hampshire at the Bleeding Edge of Regulation

The PFAS issue continues to expand in New England and across the U. S. In the summer, NEBRAMail reported on regulatory actions taken in NH and ME that directly impacted wastewater and biosolids programs. The ripple effects from those actions continue to propagate. Meanwhile, actions in a few other states are also raising concerns for water quality professionals, and municipalities and wastewater utilities and their biosolids programs are facing uncertainties related to potential liability and significant unforeseen costs. PFAS – per- and polyfluorinated alkyl substances – are persistent and sometimes bioaccumulative chemicals that provide stain, water, and grease resistance and surfactant properties in many products and processes; they have been in common use since the 1950s and are found in trace amounts in the environment worldwide.

Biosolids recycling to soils on farms and other lands has long provided significant benefits to soils, crops, landowners, and communities. But those benefits are sometimes being ignored and overrun as unintended impacts hit biosolids programs where states are aggressively applying standards based on highly conservative assumptions aimed at reducing human exposures to PFAS. The problem comes when additional uncertainty factors are added to risk calculations – because the science is still developing – creating standards that are very close to ambient background levels of some PFAS found widespread in the environment and in wastewater and biosolids.

How will regulations play out if all wastewater contains PFAS at levels on par with new drinking water and groundwater and potential surface water standards being set in some states (e.g. MA, MI, MN, NH, VT)?

Health impacts still debated

NEBRA has avoided weighing in on the toxicology and risk assessments for PFAS in drinking water, except to point out that conclusions continue to vary widely across jurisdictions. Canada finalized PFOA and PFOS drinking water standards at 200 and 600 ppt this year, while NH has just set theirs in the teens range. The wide range of standards is an indication of the lack of consensus on what are safe exposure levels.

The problem is, while many health studies show reason for concern, caution is needed in drawing conclusions. Thus, Massachusetts DEP, for example, summarizes the health impacts of PFAS this way, with tentative, hedging vocabulary (from MA state website, emphasis added):

“Studies indicate that exposure to sufficiently elevated levels of certain PFAS may cause a variety of health effects including developmental effects in fetuses and infants, effects on the thyroid, liver, kidneys, certain hormones and the immune system. Some studies suggest a cancer risk may also exist in people exposed to higher levels of some PFAS. Scientists and regulators are still working to study and better understand the health risks posed by exposures to PFAS, and MassDEP is following developments in this burgeoning area closely.”

The rush some states feel to set standards for PFAS has run the furthest in New Hampshire and Maine. These two states provide examples of the challenges of setting PFAS regulations. Perhaps other states – most of which are moving more slowly and watching developments carefully – will learn from the experiences in Maine and New Hampshire (NH).

Impacts of Setting Low MCLs in NH

There are two reasons for wastewater and biosolids managers to be concerned about the new NH drinking water maximum contaminant levels (MCLs) and groundwater standards for four PFAS that are effective September 30, 2019:

1. Will wastewater effluent and biosolids management be able to avoid impacting drinking water sources and groundwater at such low part-per-trillion levels? A part per trillion is 1 second in 31,700 years, and analytical abilities to accurately measure those tiny amounts remain challenging. Research has shown that septic systems in a purely residential neighborhood have released some PFAS compounds at levels that have impacted neighboring drinking water wells at levels in the teens of parts per trillion – on par with NH’s new standards. It is likely that other modern activities may also impact waters at levels close to the regulatory numbers. NH DES has estimated that more than 10% of residential wells in the state will show PFAS above the new standards. Installing household treatment systems for all these wells and maintaining them in perpetuity will be costly. NH DES estimates total costs of implementing the new PFAS MCLs in the hundreds of millions of dollars. And the state has provided essentially no funding to help municipalities and utilities, let alone homeowners.

2. Will municipalities and utilities be held liable as “responsible parties” under the concept that is central to federal “Superfund” law (CERCLA)? That is the unnerving question being considered by public and private organizations involved in wastewater and biosolids management. If water resource recovery facility (WRRF) effluent or biosolids, which inevitably contain some trace amounts of PFAS, are thought to have caused drinking water or groundwater impacts above the new standards, will NH DES require them to pay for all or part of site investigation and remediation costs? So far, the answer from NH DES leadership has been “yes, if you impact a neighbor’s well, you will be seen as a responsible party and be required, for example, to investigate the site and install a treatment system and maintain it in perpetuity.” That potential liability has spooked many in the wastewater and biosolids management profession, including utilities, farmers, landowners, and biosolids management companies, such that some are considering halting land application to reduce liability. In NH, that could mean 50,000 wet tons of biosolids have no place to go over the next year. (NH DES is talking about building a huge incinerator for it and other wastes, but imagine the time and cost required to permit that.)

To address the cost and liability issues, the NH Municipal Association is working with legislators on a bill to be introduced this fall that would provide at least partial grant funding for local PFAS remediation and testing at water and wastewater systems and reduce or remove the liability concern.

Meanwhile, NH has sued manufacturers of PFAS, as have other states, and is hoping for hundreds of millions of dollars in settlement money to help pay for remediation – but that legal process could take up to a decade. Meawhile, municipalities and utilities are starting to bear the costs now.

Proposed Federal Legislation Raises Liability Concerns Too

Meanwhile, this spring and summer, a score of PFAS-related amendments and bills have been rushing through Congress. Two House amendments to the National Defense Authorization Act (NDAA) are concerning to water quality professionals, and WEF and NACWA are leading efforts to amend or defeat them (see NACWA request for action, below, and WEF’s water advocates effort). One, the Dingell amendment, would require listing of PFAS under CERCLA – the Superfund law. The second, by Rep. Chris Pappas of NH, would require similar listing under the Clean Water Act. Either of these amendments could create responsible party liability for wastewater utilities, municipalities, and related wastewater and biosolids management activities. CERCLA has long had limited exemptions for municipalities, removing liability for waste management activities. But the current proposed legislation does not clearly extend such exemptions. It makes no sense for municipalities and utilities to be liable for any PFAS they happen to receive; they do not use PFAS, are not a source. CERCLA and similar laws are intended to put the responsibility for costs of cleanups on those who profit from chemicals, such as manufacturers and industrial users.

Maine Continues Its Partial Moratorium on Biosolids

Maine DEP and the ME Department of Agriculture have been collecting considerable data since the biosolids testing requirements were imposed in March 2019. The milk on at least four farms that have had annual applications of biosolids for up to 30+ years all showed no detectable PFAS in their milk. This reduced regulators’ anxiety some. And while all biosolids were found to exceed Maine’s screening limits (which NEBRA has long argued are inappropriate), Maine DEP allowed for application rate calculations resulting in permitting of sale and distribution of biosolids compost products for another year, through June of 2020. However, land application of bulk biosolids remains curtailed for most of those utilities that had relied on this management method. Stockpiles of biosolids are accumulating on treatment facility properties, and several farms have field stockpiles that Maine DEP is not allowing to be spread. (NEBRA has urged Maine DEP to release these orphan stockpiles for application this fall, if landowners wish to use them; the added PFAS impacts would be negligible.) And truckloads of biosolids are headed to landfills, or to beneficial use in Canada, when and where there is capacity.

In both Maine and New Hampshire, the biosolids management market remains disrupted, and prices have risen, in some cases by nearly double. These unexpected costs are borne by local communities and public utility ratepayers - many of us.

The Maine PFAS Summit

The Maine Water Environment Association (MEWEA) has been active in trying to ameliorate the crisis in Maine and find compromises with Maine regulatory agencies. On September 13th, as part of its annual fall convention, MEWEA hosted the Maine PFAS Summit, which attracted more than a 150 stakeholders from around Maine and New England and included presentations from the Commissioner of DEP, other DEP leadership, the Department of Agriculture, and the state toxicologist, as well as national representatives of U. S. EPA, WEF, and NACWA. Presentations from the Summit are available on NEBRA’s restricted-access PFAS pages (members contact NEBRA for access).

The Summit began with an update from David Burns, Director of DEP’s Remediation and Waste Management Bureau. He noted the cooperation of a large majority of Maine WRRFs and biosolids and paper mill residuals programs in timely performance of PFAS testing and data submissions. He emphasized that a large proportion of Maine biosolids continue to be distributed, because of the allowance of biosolids compost use through June 2020. His positive tone seemed to indicate a desire from the Department to maintain biosolids recycling as an option for wastewater solids management (they have to be managed in some way!).

However, the state’s scrutiny on biosolids as a major PFAS concern continues – scrutiny that NEBRA members consider misplaced. DEP, Mr. Burns reported, has scoured all available past records and compiled all historical data on all sites where biosolids and residuals have been applied over the decades. The intention is to prioritize the sites and begin testing them. DEP’s assumption is that some sites will have elevated soil levels of PFAS, despite the fact that data are showing that long-term municipal biosolids sites have typical low part-per-billion levels that are not impacting farm products. Discovering more sites with soil PFAS levels above Maine’s (inappropriate) screening values will only create additional confusion. Maine municipal stakeholders argue that the levels associated with biosolids use are generally far lower than the levels at PFAS hot spots at fire-fighting and military sites, and that those sites - and phasing out use of the worst PFAS - should be the priority for DEP actions.

In addition, Mr. Burns noted, DEP is testing compost use in home gardens, closed unlined landfills, reclamation sites, septage, and polymers used at WRRFs. This shows that DEP’s PFAS actions, and the focus of the Maine PFAS Task Force, continue to be on wastewater and biosolids, which are not sources, but conveyors, of PFAS. The only mention he made of direct sources of PFAS environmental contamination was when he noted that DEP is testing AFFF Class B firefighting foam sites as well. As long as the state continues to focus it PFAS efforts almost soley on wastewater and biosolids, media and public upset toward these critical, publicly-funded, municipal programs will continue to increase, with costly results.

State agriculture bureau director Nancy McBrady’s presentation to the Summit emphasized that “recently conducted state-wide retail fluid milk testing” found “all Maine-produced milk below reporting limits” for PFAS (testing was from stores throughout the state and all major milk brands). In addition, she reported testing of milk from “three (3) dairy farms, two (2) that spread biosolids – all 3 below reporting limits.” (NEBRA independently tested milk at some of the same and an additional long-term biosolids-use farm and had the same non-detect results.) Ms. McBrady also noted that soil levels measured on long-term-biosolids-use farms were in the range of 2.6 – 12.9 ppb for PFOA and 5.6 – 20.9 for PFOS; these values are in the range found at other land application sites in other states and are far below the levels found at sites impacted by fire-fighting and industrial discharges and far below the one anomalous Maine farm site – the Stoneridge Farm in Arundel, where PFOS from an industrial discharge has left up to 878 ppb of PFOS in the soil. Ms. McBrady noted this was good news, lessening concern of widespread PFAS contamination on farms. Yet she also noted continued heightened scrutiny of biosolids use on farms.

Ms. McBrady’s talk was followed by discussion with a 5th and 6th generation farm family who were directly impacted by the biosolids moratorium in the Spring, forced to dump milk for weeks during testing, and impacted by unexpected fertilizer costs. The anxiety they experienced was evident in their talk to the Summit; they are concerned about their reputation and the viability of their market. Biosolids have been an important part of their fertilizer and soil management programs for 30 years, helping them build soil vitality and maintain high crop yields. PFAS, was not on anyone’s radar, they noted. Now, suddenly, their livelihood is threatened by state regulatory actions when they have done nothing wrong and have always been in compliance with Maine DEP and Department of Agriculture standards. They asked for better communications, for state regulators to inform the public further that their products and Maine milk are safe and healthy.

Additional presentations at the Summit included:

• State toxicologist Andrew Smith clearly and effectively explaining the PFAS risk assessment calculations by which numerical standards are set and why there are differences in different jurisdictions;

• Andrew Carpenter and Leigh Dorsey of Northern Tilth summarizing the state-wide biosolids and soils PFAS sampling and test results;

• Mike Winchell of Stone Environmental presenting the PFAS leaching modeling they have been conducting; and

• Steve Knollmeyer of Alpha discussing PFAS lab analysis.

Maine DEP Commissioner Jerry Reid spoke to the Summit over lunch, reiterating his reliance on the State’s risk assessors for setting numerical standards. When asked if he could see any way to relaxing the inappropriate biosolids and soil screening values given the good news that dairy products are not being impacted (non-detects in all milk tested on municipal biosolids farms), he said he did not have the authority. Attendees were left with the impression that top leadership continues not to understand and appreciate the role of biosolids recycling in helping Maine reach its sustainability goals. Ironically, days after the Summit, Mr. Reid was appointed co-chair of Maine’s Climate Council; sending biosolids to landfills and/or incinerators will significantly increase the State’s emissions (see NEBRAs GHG & biosolids info).

At the Summit, data and science were emphasized by MEWEA and other presenters, and the event culminated with representatives of U. S. EPA’s Office of Water, WEF, and NACWA emphasizing actions and concerns at the federal level. Reuben Baris, EPA Office of Water, summarized EPA’s ongoing work on chemical risk analysis and developing approved analytical methods for PFAS. He invited participation in the PFAS problem formulation coming this winter. He noted that EPA will hold an all-states biosolids meeting and training in Spring of 2020. NACWA’s Emily Remmel covered the liability concerns related to proposed federal legislation, and Tim Williams of WEF emphasized the unfortunate fact that “states’ regulatory activities accelerate each other.”

Other States’ Actions Pending

While Maine and NH may be at the bleeding edge of PFAS regulation affecting wastewater and biosolids management today, some other states are not far behind. In August, California announced drinking water notification levels of 5.1 ppt for PFOA and 6.5 ppt for PFOS (as if analytical abilities can accurately differentiate decimal-place differences of ppts!). These numbers were chosen because the CA Water Boards were advised that these are the reasonable lowest limits of analytical capability; the health-based standards, they said, would be even lower.

According to an update by the ITRC (August 2019) and NEBRA tracking, other states’ activities include:

• AK – further action on clean-up standards, etc. were put on hold, pending EPA action, in part because of the recognition that state regulation of this complicated issue is fraught; however, a major biosolids composting operation has been suspended because of the PFAS issue

• FL – Provisional target clean-up levels for PFOA & PFOS; considering surface water screening values

• MA – proposed site soil & groundwater clean-up values in the 20 ppt range for residential groundwater; comments have been taken; the process of setting state MCLs for drinking water is underway, likely looking at ~20 ppt for 6 PFAS combined

• MI – drinking water MCLs to be proposed by Oct. 1 and finalized in spring 2020; some biosolids programs are on hold; a very low PFOS surface water limit - 11 - 12 ppt – is being used to screen wastewater effluents

• NJ – has had recommended MCLs and groundwater standards for 2+ years: PFOA = 13 ppt, PFOS = 14 ppt – but has not adopted them, perhaps recognizing unintended consequences

• NY – Comments were due by Sept. 24 re drinking water MCLs: PFOA = 10 ppt, PFOS = 10 ppt

• VT – May 2019 state law requires DEC to set MCLs for 5 PFAS by Feb. 1, 2020 and later adopt surface water standards

• WI – recommended groundwater standards & preventive actions; some biosolids programs on hold already

The PFAS issue will be affecting wastewater, biosoilds, and residuals management programs for years to come.

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NEBRA’s PFAS & Biosolids/Residuals page: https://www.nebiosolids.org/pfas-biosolids

NEBRA’s advice to water quality professionals:

• Be knowledgeable and actively involved in your states’ actions on PFAS, including site clean-up standards, drinking water regulations, and groundwater and surface water standards. They need your input to help them avoid unintended impacts on critical, publicly-funded and -operated wastewater and biosolids management programs.

• Support research and best available science to help society understand the relative risk of PFAS, the relative importance of different pathways for exposure, the role wastewater and biosolids play as receivers and conveyors of PFAS, and the cost-efficiency of source control and phase-outs of the most-concerning PFAS.

• Continue to manage wastewater and biosolids with best management practices, including agronomic rate applications that reduce PFAS inputs and risks.

• Consider sampling and testing wastewater, biosolids, and residuals for PFAS, with careful planning and consideration of implications (see NEBRA’s PFAS Sampling & Analysis guidance, available to members and donors through our restricted access pages).

• Evaluate possible sources of larger amounts of PFAS entering upstream of WRRFs – industrial users and fire-fighting sites. Source control and, possibly, pretreatment are likely the most cost-effective ways to reduce any potential PFAS concerns in wastewater effluent and biosolids/residuals.