Summary of Public Comments for Rule Set # 2020-130 EQ: Cleanup Criteria

Requirements for Response Activity

The Michigan Department of Environment, Great Lakes, and Energy (EGLE) per- and

polyfluoroalkyl substances (PFAS) rulemaking public comment period ran from

July 8, 2021, through August 9, 2021, during which time 66 written public

comments were received via the designated email inbox (EGLE-

RRD@Michigan.gov ) and by mail via the Remediation and Redevelopment Division

(RRD) mailbox:

Michigan Department of Environment, Great Lakes, and Energy

Remediation and Redevelopment Division

Attention: Kevin Schrems

P.O. Box 30426

Lansing, Michigan 48909-7926

An additional 2 oral public comments were presented to EGLE

representatives during the Zoom public hearing July 8, 2021:

The template utilized in drafting the Joint Committee on Administrative Rules (JCAR)

Agency Report Package dictates a breakdown by two categories: persons submitting

comments of support and persons submitting comments of opposition. This model

does not easily address the number of recommendations for improvements included

with the vast majority of the comments. In order to meet the requirements of the JCAR

Agency Report Package, only the two required categories are included in the form –

however, EGLE’s considerations are summarized in this report.

The comments were individually read and reviewed by EGLE-RRD staff, assigned

categories of concern based on the content of each comment, and classified as in

support, or not in support of promulgating the seven per- and polyfluoroalkyl

substances (commonly referred to as PFAS) as a new table under Rule 44, that

contains the generic PFAS cleanup criteria for groundwater. A comment did not

apply to the proposed rule set, it was classified as “not pertaining to proposed

rules,” and was not counted as in support or not in support.

Criteria for the comment categories are summarized as follows:

IV. Comments in Support: 63 (95%)

Comments were classified as in support in cases where language directly

indicated overall support for the rulemaking effort. Examples include:

-

“Our groundwater is inextricably linked to our surface water and

groundwater is often a drinking water source for Michigan families,

so I fully support having the same standards for all groundwater

that we do for drinking water.”

-

“We strongly support the proposed rules. It is imperative for Michigan

to promulgate the proposed rules as soon as practicable. The

promulgation of these cleanup criteria rules to include the PFAS

MCLs is an important step to ensure all Michigan citizens have the

same drinking water protection, whether they are served by a public

water system or a private well.”

-

“We support EGLE’s actions for the seven PFAS that EGLE proposes

to regulate under Part 201. … We commend EGLE for developing

new generic cleanup criteria values for perfluorononanoic acid

(“PFNA”), perfluorohexane sulfonic acid (“PFHxS”), perfluorohexanoic

acid (“PFHxA”), perfluorobutane sulfonic acid (“PFBS”), and

hexafluoropropylene oxide dimer acid (“HFPO-DA”), and for updating

existing criteria values for perfluorooctane sulfonic acid (“PFOS”) and

perfluorooctanoic acid (“PFOA”). Use of these generic cleanup

criteria to identify and guide remediation at contaminated sites will

benefit both human health – by protecting the residential wells upon

which millions of people in Michigan rely – and wildlife.”

“We commend the Whitmer Administration and EGLE for taking

expeditious steps towards regulating PFAS in both public and private

drinking water supplies to protect human health. … strongly supports

quick action to adopt the strongest possible groundwater cleanup

standards for PFAS in Michigan. We urge the Administration and

EGLE to make certain we are as aggressive as possible in combatting

these forever chemicals that are harmful to our environment and the

health, safety and well-being of Michigan’s residents. Therefore, we

urge you to move forward with implementation of the Administrative

Rules for Cleanup Criteria Requirements for Response Activity, Rule

Set 2020-130 EQ.

-

“...EGLE should level the playing field for all Michiganders by adopting

these proposed cleanup criteria for groundwater used for drinking

water.

“EGLE should not attempt to balance industry’s acceptance of the

proposed cleanup criteria with the clear public health benefits provided

by this rule set.

“We see the proposed rules as a valuable mechanism to protect

resources from risks associated with PFAS.”

Often, comments in support included feedback regarding recommendations

for the rule making process for PFAS cleanup criteria. These are reflected

in III. Categories of Concern, below.

V.

Comments not in Support: 2 (3%)

Comments were classified as not in support in cases where language

directly indicated concerns with adopting the PFAS state drinking water

standards (MCLs) as cleanup criteria. Examples include:

-

“Because the Cleanup Criteria Requirements for Response Activity

rules are based, in part, on the promulgation of State Drinking Water

Standards for PFAS under Supplying Water to the Public rules, the

MMA is respectfully resubmitting the peer review findings and

recommendations [for the MCLs] for consideration. MMA believes the

state endeavored to establish appropriate standards, though our peer

review identified some areas lacking in the kind of robust scientific and

technical integrity needed to complete the effort. We believe the issues

identified in the peer review report and associated recommendations

would result in the state’s rulemaking initiative achieving the process

and confidence milestones expected of state agencies.

-

“If finalized, the Proposed Rule would add extremely burdensome

groundwater cleanup criteria for certain PFAS to Michigan’s

Groundwater Cleanup Criteria under Rule 299.44. … The RIS does not

provide a sufficient level of detail for the conclusions it puts forward,

nor does it provide either qualitative or quantitative estimates of the

costs and benefits of the Proposed Rule. … request that EGLE correct

certain inaccurate or misleading statements regarding purported

impacts to public health and provide a more detailed cost benefit

analysis in the draft Regulatory Impact Statement and Cost Benefit

Analysis (RIS) in support of the Proposed Rule.”

III.

Categories of Concern

Three categories of concern, were identified by EGLE- staff during review.

1. EGLE should consider utilizing a class-based approach in

developing PFAS criteria.

A class-based approach is not presently feasible, as PFAS analytical

techniques are currently only useful in quantifying a set of known PFAS

compounds. Semi-quantitative and qualitative analysis for non-targeted PFAS

analytes are available but must be paired with well-established quantitative

analyses to accurately assess PFAS analyte levels in groundwater used as a

source of drinking water. Additionally, the orders-of-magnitude variations in

MCLs for PFAS do not lend themselves to a single combined level. This

number would necessarily be lower than all but the lowest individual proposed

values.

It is recognized that the science of PFAS is evolving. The rule-making process

allows for new information to be considered in future reassessments of the

PFAS drinking water criteria rules.

2. EGLE must update the PFAS criteria to reflect most recent data and/or

science to ensure they are properly protective. EGLE must continue to

evaluate additional PFAS compounds and pursue development of generic

cleanup criteria for any such compounds.

MPART and EGLE recognize that this class of emerging contaminants will

require ongoing assessment of available science as new information may come

to light which requires a re-assessment of the PFAS cleanup criteria, or the

development of additional PFAS cleanup criteria. The existing rulemaking

process allows this as needed.

3. Development of PFAS MCLs that are the basis of the PFAS cleanup criteria.

The MCLs were developed by the Michigan PFAS Action Response Team

(MPART) Science Advisory Work Group (SAWG), a group of experts in the fields

of epidemiology, toxicology, and risk assessment. In order to address the

comments submitted as a peer review, EGLE requested that MPART perform a

review of the arguments presented and provide a response. The MPART Human

Health Workgroup completed this task and concluded that none of the comments

submitted raise concerns which would meaningfully alter the SAWG’s conclusions.

The MCLs were adopted as proposed and the PFAS cleanup criteria use of the

MCLs are consistent with the statutory requirements of Part 201.

IV.

V.

Regulatory Impact Statement/Cost Benefit Analysis

A comment in opposition questioned the appropriateness of the Regulatory

Impact Statement (RIS) prepared by EGLE-RRD. Having reviewed these

comments, EGLE-RRD has determined that the existing RIS provides the

necessary detail and analysis as required by law.

Proposed Rule Changes

Having reviewed the public comments, EGLE identified no necessary rule

changes.

Brandt, Patricia (EGLE)

From:

Sent:

To:

Matthew D. Schneider <

Monday, August 9, 2021 4:43 PM

EGLE-RRD

@bdlaw.com>

Subject:

Attachments:

Comments on Proposed Rule Set No. 2020-130 EQ

2021-08-09 FINAL Comments on Michigan EGLE PFAS Groundwater Standards.pdf

CAUTION: This is an External email. Please send suspicious emails to abuse@michigan.gov

Please find attached 3M’s Comments on Proposed Rule Set No. 2020-130 EQ, to Establish Groundwater Cleanup Criteria

for Per- and Polyfluoroalkyl Substances.

3M appreciates the opportunity to comment. Please feel free to contact me with any questions regarding these

comments.

Matthew D. Schneider

Associate

1900 N Street, NW, Suite 100 ~ Washington, DC 20036 ~ bdlaw.com

O

~ M

~

@bdlaw.com

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1

3M Company

3M Center

St. Paul, MN 55144-1000

August 9, 2021

Kevin Schrems

P.O. Box 30426

Lansing, MI 48909

Submitted electronically via: EGLE-RRD@michigan.gov

Re: Comments on Proposed Rule Set No. 2020-130 EQ, to Establish Groundwater

Cleanup Criteria for Per- and Polyfluoroalkyl Substances

Dear Mr. Schrems:

The 3M Company (“3M”) appreciates the opportunity to comment on the proposed

Cleanup Criteria Requirements (“Proposed Rule”) for per- and Polyfluoroalkyl substances

(“PFAS”) published in the Michigan Register by the Michigan Department of Environment,

Great Lakes, and Energy (“EGLE”) on July 1, 2021. If finalized, the Proposed Rule would add

extremely burdensome groundwater cleanup criteria for certain PFAS to Michigan’s

Groundwater Cleanup Criteria under Rule 299.44. As a science-based company with substantial

experience, expertise, and product stewardship of certain fluorinated compounds, 3M is well

positioned to provide input to EGLE regarding the Proposed Rule.

The RIS does not provide a sufficient level of detail for the conclusions it puts forward,

nor does it provide either qualitative or quantitative estimates of the costs and benefits of the

Proposed Rule. 3M requests that EGLE correct certain inaccurate or misleading statements

regarding purported impacts to public health and provide a more detailed cost benefit analysis in

the draft Regulatory Impact Statement and Cost Benefit Analysis (RIS) in support of the

Proposed Rule.

I.

The RIS is Inaccurate and Misleading

The RIS inaccurately claims that the Proposed Rule “will provide the basis for

identifying hazardous levels of PFAS in the environment” and that the Proposed Rule will

“protect the public from unhealthy exposure to these hazardous substances.” These Proposed

Rules are based on the MCLs established in August 2020 for the seven regulated PFAS. As

EGLE states on its website, the MCLs are “set at amounts that pose little to no health risk for

those that drink the water over their lifetime.” See

https://www.michigan.gov/pfasresponse/0,9038,7-365-95571_99970---,00.html (last visited

August 6, 2021). There is no basis for the statement that identifying an exceedance of the

proposed groundwater criteria, which are set at the same levels as the MCLs, will identify

hazardous levels of PFAS in the environment. To the contrary, the MCLs identify levels that

pose “little to no health risk” over a lifetime. This inflammatory language regarding potentially

hazardous exposure is inaccurate and risks misleading the public about the safety of their water.

Moreover, the RIS’s statement that “[e]xposure to PFAS chemicals has been shown to cause

numerous adverse health impacts” is a misleading and inaccurate characterization of the Science

Advisory Workgroup’s (the “Workgroup”) conclusions. The Workgroup did not find that

exposure to PFAS chemicals “cause” any health impacts.¹It did not determine a cause and

effect relationship for any PFAS. In addition, the Workgroup’s conclusions were subject to

significant flaws and constraints given the accelerated timeline within which the Workgroup was

required to conclude its work.

Finally, there is no basis for the statement in the RIS that failure to establish these

standards “puts public health at risk.” The RIS cites nothing to support this statement, and it is

subject to the same flaws regarding claims about health risks as identified elsewhere in these

comments. Although the RIS alludes to certain purported health impacts of PFAS exposure, it

does not list or describe these health effects or analyze whether those purported health effects are

relevant at the levels of exposure contemplated by the Proposed Rule. To the extent that

scientific studies on the health effects of exposure to the seven regulated PFAS contribute to

identifying and quantifying benefits in the Proposed Rule, that information should be included in

the RIS. In addition, the RIS itself states that the “same treatment technology can be used to

address all seven PFAS.” EGLE relies on the fact that there are already PFOA and PFOS

groundwater cleanup criteria in place for its conclusion that the rule will not require additional

actions beyond what is already required. Given that standards already exist for two of the seven

regulated PFAS and EGLE asserts that the same treatment addresses all seven, this statement

regarding public health risk is baseless and misleading.

II.

EGLE Should Make Additional Efforts to Evaluate the Costs and Benefits

Associated with the Proposed Rule

EGLE’s analysis of the costs and benefits of the Proposed Rule is severely lacking.

Rather than undertake any estimated analysis, EGLE simply states that because there are

unknowns it cannot make any estimate at all. EGLE can do more to estimate the costs, including

providing estimated costs to implement the Proposed Rule at the 154 sites it has identified as

having exceedances of the proposed groundwater criteria. EGLE has also identified only vague

and general public health benefits, without any attempt to quantify or describe the specific

anticipated benefits of the Proposed Rule.

¹This is consistent with the conclusions of numerous authoritative bodies such as the Agency for Toxic Substances

and Disease Registry (ATSDR) and the Australian Expert Health Panel. See ATSDR 2018 Analysis at 635-36

available at https://www.atsdr.cdc.gov/toxprofiles/tp200.pdf (“The available human studies have identified some

potential targets of toxicity; however, cause and effect relationships have not been established for any of the effects,

and the effects have not been consistently found in all studies.”); Expert Health Panel for Per- and Poly-Fluoroalkyl

Substances (PFAS), March 2018, Summary at 2 available at

https://www1.health.gov.au/internet/main/publishing.nsf/Content/C9734ED6BE238EC0CA2581BD00052C03/$File

/summary-panels-findings.pdf . (“After considering all of the evidence, the Panel’s advice…is that the evidence does

not support any specific health or disease screening or other health interventions for highly exposed groups in

Australia, except for research purposes.”)

2

For example, EGLE’s compliance cost estimate for businesses and groups is insufficient.

EGLE is required to develop a comprehensive economic analysis for businesses and individuals.

However, the RIS for the Proposed Rule simply states that EGLE “does not have the ability to

estimate the actual statewide compliance costs of the rule amendments on business [or

individuals]” due to a lack of PFAS reporting requirements for groundwater contamination.

EGLE did not put forth any numerical estimates, even hypothetical estimates, on the potential

compliance costs for businesses or groups despite having information about at least the 154 sites

it claims to have identified as exceeding the proposed standard in the RIS. See RIS ¶29A (“To

date, EGLE has identified 154 facilities where PFAS exceeds the generic cleanup criteria for

groundwater used for drinking water for PFOA and PFOS. EGLE has also identified locations

where concentrations of PFNA, PFHxS, PFBS, PFHxA, and HFPO-DA have been detected

above their respective criteria in addition to PFOA and PFOS.”)

Additionally, for businesses required to conduct cleanups based on the standards set in

the Proposed Rule, the RIS merely states that “[t]he costs associated with each cleanup would

vary location to location depending on a number of factors – the proximity of wells used for the

drinking water supply, the ability to contain and properly manage the release, the volume and

concentration of the pollutant in the groundwater, etc.” The enormous difference in potential

costs alluded to in the RIS does little to instruct impacted businesses and sectors on how to best

prepare for potential rule implementation. There is no range of potential costs given, and costs

are not broken down by substance, so an impacted entity cannot clearly identify the potential

scope of impact. This cursory statement is not nearly detailed enough to provide the regulated

community a meaningful opportunity to comment on the Proposed Rule.

Further, the RIS does not provide a numerical estimate of impacts on small businesses,

stating that EGLE “does not have the necessary data” to make an estimate. EGLE should obtain

the data it needs in order to actually assess costs of the Proposed Rule to small businesses, as it is

required to do. The purpose of allowing stakeholders to comment on a draft RIS is to solicit

stakeholder feedback on the agency’s analysis – not to give the agency material with which to

retroactively develop that analysis. Stakeholders should be given adequate opportunity to

comment on a robust economic analysis, rather than solely fill in gaps in EGLE’s analysis. The

lack of analysis in the draft RIS undermines the purpose of holding a public comment period, as

it deprives stakeholders of an opportunity to meaningfully comment on the agency’s action. For

that reason, EGLE should provide a further public comment period once it has compiled

information received during this comment period and any further analysis EGLE conducts.

***

3M appreciates the opportunity to provide comments and encourages EGLE to provide

more transparency regarding its conclusions about the appropriate groundwater cleanup

standards for PFAS, as well as the corresponding compliance, implementation, and remediation

costs. Thank you for your consideration.

3

Brandt, Patricia (EGLE)

From:

Sent:

To:

Joanne Bauer <

Thursday, July 1, 2021 9:53 PM

EGLE-RRD

@gmail.com>

Subject:

RE: Rule Set 2020-130 EQ Cleanup Criteria Requirement for Response Activity

CAUTION: This is an External email. Please send suspicious emails to abuse@michigan.gov

Remediation and Redevelopment Division, Michigan Department of Environment, Great Lakes, and Energy,

Comment

RE: Rule Set 2020-130 EQ Cleanup Criteria Requirement for Response Activity

For decades Michigan residents and our water resources have been contaminated with PFAS chemicals. I strongly urge

the Department of Environment, Great Lakes, and Energy to enforce groundwater standards for PFAS that are as

protective of human health and our water resources as possible. Our groundwater is inextricably linked to our surface

water and groundwater is often a drinking water source for Michigan families, so I fully support having the same

standards for all groundwater that we do for drinking water.

As we learn more about PFAS chemicals and their impact on human health, it may be necessary to consider regulating

these chemicals as a class instead of regulating them individually. Please keep working to ensure that both drinking and

groundwater standards are properly protective of human health and updated to reflect the most recent scientific

evidence about the potential impacts of PFAS on humans, wildlife, and our water resources.

Thank you,

Sincerely,

Joanne Bauer

Lansing, MI 48917

1

Brandt, Patricia (EGLE)

From:

Sent:

To:

Mary Brady-Enerson <

Thursday, July 1, 2021 10:13 AM