United States: Michigan Governor Moves To Establish Enforceable PFAS Limits

Paul C Sarahan is a Partner in Holland & Knight's Austin office.

On March 29, 2019, Gov. Gretchen Whitmer announced the formation of a science advisory workgroup and her order for the Michigan Department of Environment, Great Lakes, and Energy (EGLE), formally the Michigan Department of Environmental Quality (DEQ), to initiate rulemaking to establish enforceable limits for the presence of per- and polyfluoroalkyl substances (PFAS) in Michigan's drinking water. PFAS are a category of man-made chemicals that have been widely used to make products because of their stain-resistant, waterproof and/or nonstick properties and are also in fire-fighting foam.

Governor Whitmer stated, "Today I'm directing the Michigan PFAS Action Response Team 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 (MCL) for Michigan by no later than July 1, 2019. Additionally, I'm directing the Department for Environmental Quality to immediately file a Request for Rulemaking to establish enforceable [Maximum Contaminant Levels] for PFAS in our drinking water supplies. The proposed regulations will be completed on an accelerated schedule with input from stakeholders by no later than Oct. 1, 2019." The workgroup has a deadline of July 1, 2019, for recommending the health-based values. The draft rules are expected to be developed by Oct. 1, 2019, and adopted in the spring of 2020.

The Governor's action is just the latest effort within Michigan to address PFAS issues. Other recent PFAS-related actions include the following:

The Michigan PFAS Action Response Team

In 2017, the Michigan PFAS Action Response Team (MPART) was created as a temporary body to investigate sources and locations of PFAS as well as to protect drinking water and public health. Since then, MPART has identified PFAS in several counties, cities and towns throughout Michigan. On Feb. 4, 2019, Governor Whitmer signed an order making MPART an established body tasked with addressing the threat of PFAS contamination in Michigan, protecting public health, and ensuring the safety of Michigan's land, air, and water, while facilitating inter-agency coordination, increasing transparency, and requiring clear standards to ensure accountability. The Order creates MPART as an advisory body within the EGLE, with the participation of seven state agencies. MPART is responsible for providing recommendations to the director of the EGLE and the directors of the other agencies, and coordinating efforts between the participating agencies. MPART will also research, identify, recommend and implement PFAS response actions.

Michigan Establishes Cleanup Criteria for PFAS at 70 ppt

Following action by the U.S. Environmental Protection Agency (EPA) to publish a health advisory for two PFAS chemicals: perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) at 0.070 micrograms per liter (μg/L) or 70 parts per trillion (ppt), in 2018 Michigan adopted the 70 ppt level as cleanup criteria for groundwater used as drinking water. Michigan is one of an increasing number of states ¹ to establish clean-up standards for PFAS compounds found in groundwater used for drinking. When concentrations exceed 70 ppt for PFOA and PFOS (either individually or in combination), the State of Michigan recommends and works to ensure that the public has access to bottled water or filters.

Kent County Contamination Issues

In addition, the Michigan Department of Health and Human Services (MDHHS) is working with the U.S. Centers for Disease Control and Prevention (CDC), Agency for Toxic Substances and Disease Registry (ATSDR) and Kent County Health Department (KCHD) to characterize people's exposure to PFAS substances as it relates to ongoing groundwater contamination issues in northern Kent County. The assessment will characterize exposure levels for people whose private wells have detectable levels of PFAS. Within the study area, there are more than 100 drinking water wells with over 70 ppt PFOA and PFOS, with some wells measuring as high as 58,000 ppt. While 49 sites within Michigan are under review for PFAS contamination issues, currently no other area in Michigan has as many wells exceeding the advisory level nor are any test results as high.

'Do Not Eat' Advisory

In October 2018, MDHHS and the Michigan Department of Natural Resources (DNR) issued a 'Do Not Eat' advisory for deer taken within five miles of Clark's Marsh in Oscoda Township, which is located in northeastern Michigan, on the northern side of the Au Sable River where it enters Lake Huron. The advisory was issued due to high levels of PFAS chemicals found in deer taken within five miles of the Marsh.

Data-Gathering on Fire-Fighting Foam

Certain foam used during fire suppression and firefighter training may be the source of PFAS found in groundwater in Michigan communities. Michigan's State Fire Marshal has sought input from hundreds of fire departments in Michigan regarding their use and disposal of fire suppression foam containing PFAS, its use in training and emergencies, storage protocols and other best practice procedures. MPART and the fire marshal are analyzing the information to develop statewide solutions to dispose of the toxic firefighting foam properly and prevent contamination.

Conclusion

It is evident that there is a significant amount of activity occurring in Michigan related to PFAS issues. Governor Whitmer's recent formation of a science advisory workgroup and her order for the EGLE to initiate rulemaking to establish enforceable limits for the presence of PFAS in Michigan's drinking water are important steps in the development of a regulatory system to identify and respond to PFAS issues in Michigan. For entities operating in Michigan, it will be important to monitor the developments coming from the workgroup and to participate, as appropriate, in the rulemaking process.

Footnote

1 See, e.g., here, here and here.

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