In letter to EPA, MMA raises concerns about costs and timelines for PFAS remediation

Michael S. Regan, Administrator
U.S. Environmental Protection Agency
EPA Docket Center, OLEM Docket, Mail Code 28221T
1200 Pennsylvania Ave. NW
Washington, DC 20460

Submitted via Regulations.gov

Re: Docket ID No. EPA-HQ-OW-2022-0114 – National Primary Drinking Water Regulation Rulemaking for per- and polyfluoroalkyl substances (PFAS)

Dear Administrator Regan,

On behalf of the 351 cities and towns of the Commonwealth, the Massachusetts Municipal Association (MMA) is writing to provide comments on the proposed National Primary Drinking Water Regulation (NPDWR) for per- and polyfluoroalkyl substances (PFAS).

We deeply appreciate the Environmental Protection Agency’s focus to address emerging contaminants in drinking water, including PFAS. The MMA greatly appreciates the intent of the proposed regulations by the EPA to protect public and environmental health. Massachusetts municipalities and their public water systems (PWS) take their role as stewards of clean, safe drinking water seriously. Their continued protection of this important natural resource to the residents, businesses, and communities they serve reflects an ongoing commitment to the well-being of the environment, our economy, and our daily lives.

As one of several states with experience regulating PFAS through a state-specific drinking water standard, we would like to provide further context on how the EPA’s proposed National Primary Drinking Water Regulation for PFAS could impact the cities and towns of Massachusetts in the future, and identify areas of concern.

Existing Regulatory Landscape in Massachusetts
In 2020, the Massachusetts Department of Environmental Protection (MassDEP) established an enforceable state maximum contaminant level (MCL) of 20 parts per trillion (ppt) for the sum of six PFAS compounds. These include perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorononanoic acid (PFNA), perfluorohexane sulfonic acid (PFHxS), perfluoroheptanoic acid (PFHpA), and perfluorodecanoic acid (PFDA). This regulatory standard was much more stringent than the EPA’s health advisories for PFOA and PFOS at the time.

The Massachusetts MCL for PFOA, PFOS, PFNA, PFHxS, PFHpA, and PFDA, commonly referred to as “PFAS6,” required our members to test, monitor, and remediate PFAS contamination in drinking water before a national enforceable regulation was proposed. 170 PWS in Massachusetts were impacted by this MCL and found detections above 20 ppt. To date, $209 million has been committed for just 24 projects to treat PFAS6 through State Revolving Fund (SRF) loans. Funding corrective actions and securing loans has been and will continue to be a complex system for municipalities to navigate.

Impacts of the Proposed NPDWR and Areas of Concern
The EPA’s proposed regulation would establish legally enforceable thresholds, or maximum contaminant levels (MCLs), of 4 parts per trillion (ppt) for PFOA and 4 ppt for PFOS. This introduces a much stricter approach than the sum currently being utilized in the Commonwealth, which does not require specific action for one chemical’s result unless the 20 ppt threshold is surpassed.

The four other PFAS chemicals — perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as GenX Chemicals), perfluorohexane sulfonic acid (PFHxS), and perfluorobutane sulfonic acid (PFBS) — would be regulated as a mixture of chemicals through a hazard index (HI) calculation. Under the proposal, a running annual average hazard index value greater than 1.0 would be a violation of the proposed HI MCL. Two PFAS chemicals with a regulatory history in Massachusetts, PFHpA and PFDA, are left untouched by this NPDWR proposal.

Communities in Massachusetts will face rising water rates as a result of this new regulatory standard, and it will be critical for the federal government to provide additional funding opportunities to support communities through this significant challenge. Investments through the Bipartisan Infrastructure Law (BIL) will assist in this process, but will not be sufficient alone to bear the financial burden this proposal creates for public water systems who are committed to providing safe, reliable service.

MassDEP estimates that 198 PWS across Massachusetts will be impacted should this proposal be finalized. The MMA has been in close communication with our member communities about the impact of this proposal, including many municipalities that have already been involved with significant remediation efforts to deal with PFAS contamination within the existing state standard.

One municipality estimated that $15.8 million — in capital costs alone — will be required to install the necessary PFAS treatment infrastructure to supply the community with safe drinking water. Ongoing costs for the maintenance, operation, and staffing of the town’s treatment plants are not yet known, but the financial impact will inevitably be borne by residents and taxpayers. Water rates have already increased 10% per year since remediation efforts began, and will continue to do so in order to meet the state PFAS6 20 ppt standard. It’s important to highlight that these sizable investments have been made to comply with a more lenient regulation than what is currently being proposed by the EPA.

In addition to capital expenditures, municipalities bear the ongoing costs to provide PFAS-free drinking water during the construction period for the treatment plants and future costs to dispose of PFAS-laden filters and media. The true costs to build, staff, and run treatment plants to comply with a more stringent MCL will likely be much higher, especially when supply chain issues and increased demand to comply with a national standard are factored into the equation.

Additionally, the disposal options for PFAS-related waste must be addressed. A responsible waste management policy for contaminated materials will be necessary to prevent PFAS from re-entering the environment, whether through landfill leachate or otherwise. The management of these environmental contaminants will require a holistic approach that anticipates future problems, including a dwindling supply of landfill capacity that New England states are experiencing. Should further regulations complicate the waste management landscape, states could become reliant on transporting waste across state and federal borders to those willing to handle contaminated waste. This is not only a costly solution for municipal budgets to handle, but an environmental detriment when considering the greenhouse gas emissions associated with shipping waste out of state via truck or rail.

Unless manufacturer liability and responsibility are introduced into this framework, these costs will continue to be absorbed by those who have no fault in the contamination of local water supplies. Water systems are passive receivers of PFAS, and do not manufacture or intentionally add these chemicals to water sources and supplies. Without the institution of polluter responsibility or a more comprehensive approach to fund PFAS treatment, municipal ratepayers will be forced to pick up the slack, stressing the pocketbooks of families and individuals.

As communities have learned throughout implementation of the Massachusetts PFAS6 MCL of 20 ppt, the process to get treatment facilities up and running is a lengthy one. Local land use or zoning processes, thoughtful design, procurement, development and construction has taken longer than anticipated in Massachusetts, and many communities are still in the process of installing treatment three years into our enforceable state maximum contaminant level. The cities and towns of Massachusetts have devoted local resources to build public awareness campaigns necessary to ensure trust and confidence in public water across the state, and assistance will be needed on a federal level to fill gaps in understanding. Thus, we also urge the EPA to provide a longer implementation timeline to make this more practical for cities and towns across the country.

Summary
The requirements to comply with the EPA’s National Primary Drinking Water Regulation proposal go beyond the normal operating budgets of our cities and towns. Because of the tax-limited environment in Massachusetts cities and towns, many communities would be forced to consider an override to increase local property tax burdens, or be compelled to reduce funding for existing programs and services. That is the simple reality caused by unfunded mandates.

Public water systems are devoted to the provision of safe drinking water and will do what is necessary to ensure public trust and confidence in this resource. However, without supplemental funding and a practical timeline for this necessary work, municipalities will struggle to finance and implement corrective action, and this new burden will weaken the delivery of other vitally important services.

We welcome opportunities to work collaboratively with the EPA and EPA Region 1 staff as the regulatory process continues to ensure that municipal concerns and realities are taken into full consideration.

Thank you for considering our comments on the proposed National Primary Drinking Water Regulation. If you have any questions or desire further information, please do not hesitate to have your office contact me or MMA Legislative Analyst Josie Ahlberg at jahlberg@mma.org at any time.

Sincerely,

Geoffrey C. Beckwith
MMA Executive Director and CEO