May 16, 2022

Priscilla Rohrer

Virginia Department of Environmental Quality

4411 Early Road

P.O. Box 3000

Harrisonburg, VA 22801

Re: 3M Comments on Virginia Waste Management Board’s Proposed Amendment Nine to Groundwater Monitoring Standards at 9VAC 20-81  

Dear Ms. Rohrer:

3M Company (3M) appreciates the opportunity to provide comments to the Virginia Department of Environmental Quality (DEQ) in response to its proposed amendments (“Proposed Amendment” or “Proposed Rule”) to Virginia’s groundwater monitoring standards for landfills, codified at 9 VAC 20-81, and its underlying economic impact analysis (EIA) put forward by the Department of Planning and Budget (DPB).  3M understands that the Amendment adds certain per- and polyfluoroalkyl substances (PFAS) to the list of constituents requiring groundwater solid waste monitoring, and therefore potential corrective action, and that this amendment was proposed, in part, to prepare for the Virginia Department of Health’s anticipated establishment of maximum contaminant levels (MCLs). 3M is a science-based company with substantial experience, expertise, and product stewardship related to PFAS.  It is with that background 3M offers comments on the Proposed Rule. 

1. THIS RULEMAKING IS PREMATURE

This rulemaking is premature because it is contingent upon critical rules that are not yet finalized, or for some constituents, even proposed.  The Proposed Amendment requires all landfills in Virginia to monitor for PFAS and other emerging contaminants after the Virginia Board of Health (Board) sets MCLs at some future time. Given that the Board has not yet implemented MCLs or even determined that MCLs are needed, for some of the listed substances, including PFAS, this rulemaking is premature.

The Proposed Amendment requires sampling for six specific PFAS when corresponding MCLs are promulgated: perfluorobutanoic acid and perfluorobutyrate (PFBA); perfluoroheptanoic acid (PFHpA); perfluorohexanesulfonic acid and perfluorohexane sulfonate (PFHxS); perfluorononanoic acid (PFNA); perfluorooctanesulfonate acid (PFOS); and perfluorooctanoic acid (PFOA). See Proposed Amendment at Table 3.1.  Of those, the enabling statute only directs the Board to consider MCLs for PFOA and PFOS. Other PFAS are considered only “as the Board deems necessary.” VA Code § 32.1-169(B). Given this uncertain state of regulation for PFAS, it is inappropriate and premature to impose monitoring requirements prior to even understanding the standards that set the basis for this monitoring.

 Such premature rulemaking cannot meet the stringent standards set forth by the Virginia Administrative Process Act. (APA) Va. Code § 2.2-4000, et seq. The APA requires agencies to describe the basis for and purpose of a proposed rule and the impacts on particular sectors.  Va. Code § 2.2-4000.04-.05.  Yet, this Proposed Amendment cannot sufficiently do that as it has not fully evaluated the need for standards in the first instance. The only reference to these six PFAS in the Proposed Amendment is from a study conducted pursuant to HB586. However, this law or resulting study is not referenced in any of the documentation underlying this rulemaking, and the rulemaking and underlying documents do not provide any further scientific basis for selecting certain PFAS for monitoring. In addition, the Economic Impact Analysis (EIA) underlying this rule fails to meet all of these requirements and more as prescribed by the APA. As demonstrated further below, the costs of monitoring and any corrective action that may be required cannot be predicted before MCLs are set.  

PFAS substances should only be added to the monitoring standards list when DEQ has made a clear showing of whether and how it is necessary to do so.  Instead, the Agency Background Document simply states that the monitoring requirements will detect and address “impacts to groundwater so that risks to human health and the environment can be better understood.” This vague rationale does not explain how standards set forth in the rule would help the agency to “understand” risks to human health and the environment, nor how the agency selected the contaminants that it is choosing to monitor. In accordance with the APA, DEQ and DPB must revise and republish the EIA and Background Document to better explain the basis for the proposed rule.

2. DBP’S ECONOMIC ANALYSIS IS FLAWED UNDER THE VIRGINIA ADMINISTRATIVE PROCESS ACT, AND DPB MUST PUT FORTH A REVISED ANALYSIS

The Draft EIA is insufficient under the standards set forth in the Virginia APA, § 2.2-4007.04, because it fails to meaningfully inform affected entities of the initial and ongoing costs of compliance, which will likely vary significantly based on the MCL value set. The EIA’s sparse analysis of the costs of sampling and monitoring requirements, necessary infrastructure, administrative and reporting requirements, corrective action requirements, and costs related to additional PFAS that may be regulated in the future, makes it impossible for regulated entities to prepare to comply with this proposed Amendment or meaningfully participate in the rulemaking process. 3M requests that DPB reassess the economic impacts to regulated entities and re-issue the revised EIA for public comment in accordance with the APA. Virginia APA § 2.2-4007.04(E)(1-2).  

The Proposed Amendment lists six PFAS to be regulated in Column C of Table 3.1. However, these may not be the only PFAS or emerging constituents for which an MCL may be set.[1] The Agency Background document notes that “[t]he content of Column C can be modified in the future if necessary, based on the actions taken by VDH to adopt MCLs for emerging constituents.” The EIA fails to contemplate the potential variation in costs, because MCLs have not been set for several of the constituents, and it is impossible for the agency to estimate monitoring costs for every possible constituent for which DEQ will develop an MCL. This rulemaking is premature because it is impossible to set forth a comprehensive EIA without MCLs. DBP’s woefully inadequate EIA confirms this.

1. 1. The EIA Does Not Adequately Estimate Sampling and Monitoring Costs

The EIA fails to estimate the costs of monitoring, sampling, and related “reporting recordkeeping and other administrative costs,” as required by the Virginia APA. The prospect of corrective action requirements on businesses, including upfront financial assurance requirements, cannot be predicted because an MCL value has not been set.

The only cost quantified in the EIA is the cost of testing a single groundwater sample, which is estimated in the range of $349 to $700. Not only does this estimate present an overly wide range of sampling costs, it fails to take into account ongoing costs, variations in required sampling frequency, and overall costs of testing when all single samples are combined. For example, the proposed Amendment increases the initial and background sampling for all listed constituents from four to eight independent samples from each well without a corresponding cost estimate. Beyond quantifying the estimated cost of a single sample, the EIA simply states that the monitoring would “be an additional cost for entities that choose to own or operate a landfill” (EIA at 7), and that “the landfill would incur ongoing costs for conducting PFAS monitoring.” (EIA at 10.)

Furthermore, the proposed Amendment does not identify a preferred test method, and the technological feasibility of monitoring at the required levels will vary significantly depending on the MCL set. The Proposed Rule fails to consider the lack of available sampling methods for certain PFAS, and the fact that the mandated sampling requirements may not be technologically feasible. The EIA states that the “regulation has been drafted to allow the use of non-SW-846 test methods for constituents … to provide flexibility concerning the test methods to be used.” Failing to specify a technologically feasible test method only increases the uncertainty for regulated entities.

There are currently very few validated and published analytical methods available for evaluating PFAS in the environment.  The available validated methods apply only to a limited subset of certain PFAS compounds. For example, EPA recently published Draft Method 1633 for analyzing PFAS in aqueous, solid, biosolids and tissue samples. The method is not yet finalized, and only covers 40 PFAS compounds. Laboratories use Methods 537.1 and 533 for NPDES purposes but neither method is officially approved by EPA outside of the drinking water context.

The EIA also fails to contemplate related costs associated with monitoring, including the potential need to drill new monitoring wells and additional administrative, personnel, and reporting costs.

DPB should put forward a range of potential site sampling costs, or at the very least give some examples for significant sites and relevant criteria for affected parties and the public to determine expected costs. DPB’s suggestion that it will seek this information as part of the public comment period for the draft EIA does not satisfy the requirements of the APA to provide the “best estimate” of costs “for the purposes of public review and comment.” Virginia Code § 2.2-4007.04(C).

2. 2. The EIA Makes No Attempt to Assess the Costs of Corrective Action That May be Required for Newly Listed Contaminants

The regulation being amended imposes corrective action requirements for solid waste management facilities that discover listed contaminants exceeding the thresholds set forth by the monitoring requirements. See Proposed Rule at 9 VAC 20-81-25(C); 9VAC20-81-260. The corrective action requirements are extensive, involving initial and ongoing assessment and investigation, financial assurance, notice and public meetings, and the costs of the corrective action itself. Accordingly, the draft EIA is insufficient in that it does not address corrective action and/or remediation costs at all in clear violation of the APA’s requirement for EIA’s to include the “projected costs [of compliance] to affected businesses.” Va. Code § 2.2-4007.04(A)(1).

3. The EIA Should Be Revised and Put Forward for Public Comment

The EIA is accordingly insufficient for any individual entity or business to assess the costs of the continual groundwater monitoring and corrective action that will be required if VDH establishes MCLs for the six listed PFAS or any other constituent regulated in the future.

Further, the draft EIA does not determine the “public benefit” of the rulemaking, as required by the APA. Virginia Code § 2.2-4007.04(A).  The EIA states that the monitoring requirements will allow the “risks to human health and the environment [to] be better understood.” (EIA at 7). However, the EIA also states that “health risks from groundwater constituents are constantly being evaluated and updated.” Id. It is unclear how this proposed rule provides any public benefit, and therefore this EIA blatantly disregards the requirements of the APA to describe the public benefit, despite acknowledging that a description of the public benefit should be contained in the EIA. (EIA at 1, n. 1).  

DPB must re-write its EIA to be consistent with the requirements of the APA, and must put the revised document forward for public comment. Va. Code § 2.2-4007.04(E)(1-2) (“The Department shall revise and reissue Its economic impact analysis… if… public comment… indicates significant errors in the economic impact analysis; or there is significant or material difference between the agency’s proposed economic impact analysis and the anticipated negative economic impacts to the business community as indicated by public comment…”).

            3M sincerely appreciates the opportunity to comment on the Proposed Rule, and hopes that DEQ considers the comments herein. DBP should develop a revised EIA that meets the standards set forth in the APA, and DEQ should re-propose this Amendment after the MCLs are in place.