MMA expresses concerns to Public Health Committee about legislation concerning PFAS

The Honorable Marjorie C. Decker, House Chair
The Honorable Julian Cyr, Senate Chair
Joint Committee on Public Health
State House, Boston

Delivered electronically

Dear Chair Decker, Chair Cyr, and Distinguished Members of the Committee,

On behalf of the cities and towns of the Commonwealth, the Massachusetts Municipal Association is writing to submit comments in support of H. 2197 and S. 1356, An Act to protect Massachusetts public health from PFAS.

The discovery of per- and polyfluoroalkyl substances (PFAS) and their prevalence across the Commonwealth has resulted in a vast network of research and investigation to find sustainable solutions. H. 2197 and S. 1356 would implement many of the recommendations of the PFAS Interagency Task Force to protect public health and address environmental concerns and remediation efforts related to this family of chemicals.

We deeply appreciate the work of Speaker Pro Tempore Hogan and Assistant Majority Whip Cyr in convening the Task Force and ensuring that municipalities were represented in the process. The Final Report of the PFAS Interagency Task Force — which detailed the unanimously adopted recommendations of the group — was instrumental in developing the language of these companion bills. As the Committee reviews this legislation, we are focusing our comments on two sections and their particular importance in supporting municipalities in efforts to address PFAS contamination statewide.

Comments on the PFAS Remediation Trust Fund
Massachusetts municipalities and their public water systems (PWS) serve an essential role in the Commonwealth as stewards of clean and safe drinking water. The development of a PFAS Remediation Trust Fund is of particular interest to our members, as cities and towns are facing rising costs to test, monitor and mitigate PFAS. The continued protection of drinking water for residents, businesses and communities served by municipalities reflects an ongoing commitment to the well-being of the environment, our economy, and our daily lives.

However, local officials now face further cost increases to maintain this essential resource, especially in light of the U.S. Environmental Protection Agency’s proposed National Primary Drinking Water Regulation for PFAS. The EPA’s proposed regulation would establish legally enforceable thresholds, or maximum contaminant levels (MCLs), of 4 parts per trillion (ppt) for perfluorooctanoic acid (PFOA) and 4 ppt for perfluorooctane sulfonic acid (PFOS), in addition to regulating four other PFAS chemicals through a hazard index. This introduces a much stricter approach than the threshold currently being utilized in the Commonwealth, which does not require specific action unless a 20 ppt level is surpassed.

Public water systems will soon be confronted with the extreme costs associated with PFAS remediation based on this new EPA standard. Currently, 170 PWS in Massachusetts have detected PFAS above the Massachusetts MCL of 20 ppt for six PFAS (otherwise referred to as PFAS6) compounds. MassDEP has projected that an additional 149 public water systems may be impacted by this new EPA standard. The significant costs for existing PFAS remediation efforts as well as analysis prepared by the American Water Works Association present the likely fiscal impact of this necessary work in the billions of dollars.

Communities in Massachusetts will face rising water rates as a result of this new regulatory standard, in addition to the costs already borne by ratepayers and municipal budgets to comply with the existing state standard. It will be critical for the federal and state government to provide additional funding to support communities as they strive to meet these significant challenges.

As such, we strongly support Section 1, which would establish a dedicated fund for municipalities, private well owners, and PWS for projects to mitigate the impacts of PFAS contamination in drinking water, groundwater, and soil in the Commonwealth. We especially applaud the legislation’s distribution of these funds as grants, rather than loans, the current standard for existing financial support mechanisms for these efforts.

This support, utilizing several potential funding sources, will be absolutely necessary going forward as the ongoing expenses to treat PFAS in drinking water will continue to increase and strain local budgets. We look forward to partnering with the Legislature, Administration, and the Massachusetts Attorney General’s Office in pursuing all public and private funding sources to support cities and towns in this critical work.

Comments on Groundwater and Surface Water Discharges, Permits
Regarding Section 2 of the legislation, we strongly support the intention to further regulate industrial entities who continue to be responsible for PFAS pollution in our waterways. Contamination and polluter accountability is a key strategy outlined by the PFAS Interagency Task Force Report as well as the EPA’s PFAS Strategic Roadmap. This effort will be necessary in the months and years to come as PFAS chemicals are addressed across many industries.

Specifically, this section would charge MassDEP to amend surface water and groundwater discharge permits issued to industrial parties. The language as proposed would also require MassDEP to propose rules and regulations for PFAS in wastewater and groundwater discharges under Section 27 of Chapter 21 of the General Laws. Since the existing statute can be applied to cities, towns, as well as industrial permittees, the MMA recommends clarifying this specific application to industrial discharges and pollution of PFAS chemicals under subsection (c) of Section 2 of the bill, so that this provision remains focused on the industrial pollution generators and not on the public water systems that mitigate pollution. We would welcome the opportunity to work with the sponsors and the Committee on this technical refinement.

Wastewater treatment plants, similar to drinking water facilities, are passive receivers of PFAS and do not directly cause contamination. Liability for certain chemicals such as PFOA or PFOS that might be detected at municipal wastewater treatment plants is of great concern to our members. Municipalities who manage these facilities across the nation await further updates from the EPA as they consider the designation of PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). If finalized, this rule would already trigger new responsibilities for cities and towns to manage PFOA and PFOS in many different contexts, including wastewater treatment. The potential legal and financial liability for localities to clean up PFAS chemicals in surface and groundwater discharges would be costly for local budgets, an expense ultimately borne by ratepayers in the community.

Given these unresolved liability concerns for municipal wastewater treatment plants, we suggest protections for non-industrial permittees be included to represent the intention of this section: to hold polluters accountable for PFAS contamination across the Commonwealth.

Summary
The Massachusetts Municipal Association deeply appreciates this legislation and is grateful to its sponsors for leading the effort on pressing actions to address PFAS contamination statewide. A detailed review of the future regulation of PFAS and the appropriation of funding to implement this work is essential, as is the need to address PFAS upstream, whether in consumer products, food packaging, or firefighting foam.

We appreciate your consideration of our comments on this complex and timely issue. We welcome the opportunity to work collaboratively with the Joint Committee on Public Health to further discuss the municipal perspective as part of the legislation. If you have any questions, please do not hesitate to have your office contact me or MMA Legislative Analyst Josie Ahlberg at jahlberg@mma.org at any time.

Thank you very much for your support of cities and towns across Massachusetts.

Sincerely,

Geoffrey C. Beckwith
MMA Executive Director & CEO