Michigan Office of Administrative Hearings and Rules

Administrative Rules Division (ARD)

611 W. Ottawa Street

Lansing, MI 48909

Phone: 517-335-8658 Fax: 517-335-9512

REQUEST FOR RULEMAKING (RFR)

1. Department:

Environment, Great Lakes and Energy

2. Bureau:

Remediation and Redevelopment Division

3. Promulgation type:

Full Process

4. Title of proposed rule set:

Cleanup Criteria Requirements for Response Activity

5. Rule numbers or rule set range of numbers:

R 299.1 - R 299.50

6. Estimated time frame:

12 months

Name of person filling out RFR:

Dan Yordanich

E-mail of person filling out RFR:

YORDANICHD@michigan.gov

Phone number of person filling out RFR:

517-648-9052

Address of person filling out RFR:

525 West Allegan Street

Lansing, Michigan 48933-7926

7. Describe the general purpose of these rules, including any problems the changes are intended

to address.

MCL 24.239

RFR-Page 2

The general purpose of the Cleanup Criteria Requirements for Response Activity rules is to

provide a framework for the development of residential and non-residential generic criteria and

site-specific criteria for hazardous substances necessary for the evaluation of exposure risks and to

implement the requirements for response activities and corrective actions under Part 201,

Environmental Remediation, and Part 213, Leaking Underground Storage Tanks, of the Natural

Resources and Environmental Protection Act, Act 451 of 1994, as amended, respectively.

Pursuant to MCL 324.20120a, EGLE is required to evaluate and revise the cleanup criteria derived

under that Section. The evaluation must incorporate knowledge gained through research studies in

the areas of fate and transport and risk assessment of hazardous substances and shall take into

account best practices from other states, reasonable and realistic conditions, and sound science.

As a result of the August 3, 2020, promulgation of State Drinking Water Standards (SDWS) for

seven per- and polyfluoroalkyl substances (PFAS) under Supplying Water to the Public (R

325.10101 – 325.12820) and section 5 of the Safe Drinking Water Act, 1976 PA 399 (MCL

325.1005), the department intends to develop and promulgate generic cleanup criteria for

groundwater used for drinking water for these PFAS pursuant to MCLs 324.20120a(5) and

324.20120a(23).

SDWS

MCL (ng/L)

Chemical Abstract Services

Registry Number (CASRN)

375-95-1

Contaminant

Perfluorononanoic Acid (PFNA)

Perfluorooctanoic Acid (PFOA)

335-67-1

Perfluorooctane Sulfonic Acid (PFOS)

Perfluorohexane Sulfonic Acid (PFHxS)

Hexafluoropropylene Oxide Dimer Acid (HFPO-DA)

(a GenX compound)

1763-23-1

355-46-4

370

13252-13-6

Perfluorobutane Sulfonic Acid (PFBS)

Perfluorohexanoic Acid (PFHxA)

420

400,000

375-73-5

307-24-4

8. Please cite the specific promulgation authority for the rules (i.e. department director,

commission, board, etc.).

EGLE shall promulgate, modify, or revise all generic cleanup criteria under MCL 324.20120a(17),

324.20120a(23), and may promulgate rules under MCL 324.20104(1). Under Executive Order

2011-1, Delegation Letter RRD-201-02, the authority to promulgate administrative rules under

MCL 324.20104(1) is reserved for the director.

A. Please list all applicable statutory references (MCLs, Executive Orders, etc.).

MCL 324.20104(1), MCL 324.20120a, MCL 324.20120e(1)(a), Executive Order 2011-1,

Delegation Letter RRD-201-02 (August 28, 2013)

MCL 24.239

RFR-Page 3

B. Are the rules mandated by any applicable constitutional or statutory provision? If so, please

explain.

MCL 324.20120a(17) mandates that the department shall promulgate all generic cleanup criteria

and target detection limits as rules. MCL 324.20120a(23) requires that new generic cleanup

criteria that are published pursuant to this subsection take effect and are legally enforceable when

published by the department if the department also initiates rule-making to promulgate rules for

the new criteria within 30 days.

9. Please describe the extent to which the rules conflict with or duplicate similar rules,

compliance requirements, or other standards adopted at the state, regional, or federal level.

These rules do not duplicate or conflict with any other state rules. There are no promulgated

federal cleanup criteria.

10. Is the subject matter of the rules currently contained in any guideline, handbook, manual,

instructional bulletin, form with instructions, or operational memoranda?

11. Are the rules listed on the department’s annual regulatory plan as rules to be processed

for the current year?

Yes

12. Will the proposed rules be promulgated under Section 44 of the Administrative Procedures

Act, 1969 PA 306, MCL 24.244, or under the full rulemaking process?

Full Process

13. Please describe the extent to which the rules exceed similar regulations, compliance

requirements, or other standards adopted at the state, regional, or federallevel.

The process to develop the residential and non-residential generic cleanup criteria for groundwater

used for drinking water for the seven PFAS compounds relies on the SDWS that were

promulgated on August 3, 2020. Based on a comparison of state, regional, and federal regulations,

compliance requirements, screening levels, or other adopted standards and guidance values for

PFAS in groundwater or drinking water, only Massachusetts (PFHxS), Vermont (PFHxS and

PFOS), New York (PFOS), New Hampshire (PFHxS and PFOS), Texas (PFHxA), North Carolina

(GenX), New Jersey (PFOS), Minnesota (PFOS and PFHxS) and California (PFOA and PFOS)

have values for drinking water or groundwater protection that are lower than the promulgated

SDWS. Without a complete understanding about how each state’s various values are applied to

implement their programs, it is difficult to make a direct comparison.

(Source: October 2020 Interstate Technology Regulatory Council)

14. Do the rules incorporate the recommendations received from the public regarding any

complaints or comments regarding the rules? If yes, please explain.

15. If amending an existing rule set, please provide the date of the last evaluation of the rules

and the degree, if any, to which technology, economic conditions, or other factors have changed

the regulatory activity covered by the rules since the last evaluation.

MCL 24.239

RFR-Page 4

In 2017, the existing rule set was evaluated relative to establishing Part 201 residential and

nonresidential generic cleanup criteria for groundwater used for drinking water for PFOA and

PFOS. In accordance with the existing rules at that time, the department used best available

information about the toxicological and physical-chemical properties of the PFOA and PFOS

substances and adopted by publication in 2018 the United States Environmental Protection

Agency Drinking Water Health Advisory values of 70 parts per trillion for PFOA and PFOS. On

March 26, 2019, Governor Whitmer directed Michigan PFAS Action Response Team (MPART) to

form a Science Advisory Workgroup to review both existing and proposed health-based drinking

water standards from around the nation to inform the rulemaking process for appropriate

Maximum Contaminant Levels (MCLs) for SDWS for PFAS. As a result of the MPART study,

SDWS for seven PFAS were adopted under Supplying Water to the Public (R 325.10101 –

325.12820) and the authority of section 5 of the Safe Drinking Water Act, 1976 PA 399, (MCL

325.1005).

16. Are there any changes or developments since implementation that demonstrate there is no

continued need for the rules, or any portion of the rules?

17. Is there an applicable decision record (as defined in MCL 24.203(6) and required by MCL

24.239(2))? If so, please attach the decision record.

MCL 24.239