Overview of PFAS Legal and Regulatory Framework
This document outlines the legal and regulatory framework surrounding PFAS (per- and polyfluoroalkyl substances), including hazardous waste designation, historical context at 3M sites, and the definition of hazardous substances and waste according to Minnesota statutes. It also discusses the potential hazards associated with improper handling of hazardous waste and the legal disputes regarding PFAS classification as hazardous substances.
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PFAS Legal and Regulatory Framework July 12, 2018
Agenda PFAS Hazardous Substance/Hazardous Waste Designation 3M Site History and 2007 Consent Order Washington County Landfill Douglas Corporation 2
Presenters Kirk Koudelka Assistant Commissioner Kathy Sather Remediation Division Director Gary Krueger Supervisor, Superfund Program Jamie Wallerstedt Supervisor, Closed Landfill Program Beverly Conerton MPCA Staff Attorney 3
MERLA Definition of Hazardous Substance Minn. Stat. 115B.02, subd. 8 Any commercial chemical under the Federal Water Pollution Control Act [33 U.S.C. 132(b)(2)(A)] Any hazardous air pollutant under the Clean Air Act [42 U.S.C. 7412] Any hazardous waste [defined in 115B.02, subd. 9] 4
Definition of Hazardous Waste Minn. Stat. 115B.02, subd. 9 Any hazardous waste defined in Minn. Stat. 116.06, subd. 11 and any substance identified as hazardous waste under MPCA rules [characteristic waste or listed waste]; and Any hazardous waste as defined in RCRA, which is listed or has characteristic of hazardous waste under federal regulations. 5
Hazardous Waste - Minn. Stat. 116.06, subd. 11) Hazardous waste is any substance which may: cause or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible illness; or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. 6
Hazardous Waste Definition 3M disputed that PFCs were hazardous substances in the 2007 Consent Order negotiations and in the State v. 3M litigation. 2007 Consent Order did not resolve this issue. State v. 3M litigation was an issue in the litigation. 7
Minnesota PFC Disposal Sites 2002 - 3M informs MPCA of PFCs in production wells at Cottage Grove facility Subsequent sampling identified PFC releases at other 3M waste disposal sites. 3M PFC Disposal Sites Non PFC cleanup actions 3M Oakdale State and Federal Superfund Listed 3M Woodbury State Superfund (Voluntary Remediation) 3M Cottage Grove State Superfund Listed Washington County Landfill - Closed Landfill Program/Federal Delisted Disposal occurred at sites 1950 s 1970 s Sites addressed for non-PFC contamination (VOCs) Long Term O&M prior to discovery of PFC releases
2007 Consent Order Background MPCA staff proposed to issue a Request for Response Action under MERLA to 3M. 3M disputed that PFCs are hazardous substances under MERLA. Before deciding to issue a RFRA, MPCA Citizens Board gave 3M an opportunity to voluntarily enter into an agreement. MPCA & 3M reached agreement - the 2007 Settlement Agreement and Consent Order. Significant Interest State Legislature, Local Officials, Public 10
2007 Consent Order 3M Agreed To: Implement response actions, including provision of alternative sources of drinking water when above health limits. Provide an $8 million grant to the MPCA to help remediate the Washington County Landfill. Provide a $5 million grant to the MPCA for environmental studies for PFC impacts not related to 3M PFC disposal sites. State-wide survey AFFF sites, Fish Tissue & Surface Water Monitoring, WWTP Assessment, etc. https://www.pca.state.mn.us/waste/perfluorochemicals-pfcs https://www.pca.state.mn.us/sites/default/files/c-pfc1-02.pdf 11
2007 Consent Order 3M Agreed To: Share documents on health and environmental effects of PFCs and other information about PFCs. Cooperate with MPCA and MDH in developing studies to develop HBVs, HRLs for PFCs. Reimburse the MPCA for its costs to implement the Consent Order. 12
2007 Consent Order MPCA reserved natural resource damage claims. 3M reserved right to challenge the applicability of MERLA, except in an action to enforce the Consent Order. Hazardous waste determination by MPCA was not precluded. 13
2007 Consent Order 3M to follow NPL feasibility study process, with primary consideration for response actions Excavation and destruction of PFCs; or Excavation, engineered isolation and containment of PFCs. Excavated material would not be considered to be hazardous waste based solely on PFCs. 14
Superfund Summary Soil/sediment excavations completed at all 3M sites (2008 2012) Excavated material disposed in 3M cell at SKB Industrial Landfill (> 100,000 cy) (Doubled lined cell w/doubled line facility and separate leachate collection system) Groundwater extraction and/or treatment systems installed or in final design at 3M sites Drinking water monitoring & GAC installation and maintenance (currently nearly 800 private well advisories by MDH, 500 home GAC systems installed) On-going monitoring of Municipal Wells
Municipal Well PFAS Impacts MDH Advisories issued to Cities of Oakdale, Cottage Grove, Lake Elmo, St. Paul Park and Woodbury Oakdale Carbon Treatment funded by 3M prior to CO Cottage Grove Temporary Carbon Treatment Lake Elmo Discontinue use, one of three wells St. Paul Park Discontinue use, one of three Wells Woodbury Five of 19 wells impacted
Washington County Landfill Closed Landfill Program Permitted Facility State responsible for long term operation and maintenance Remedy Evaluation using Superfund Criteria Construction of triple liner completed Oct. 2011 MN Legislation requirement 3M provided funds towards construction ~ 1.9 million cy garbage relocated Total cost - ~ $25 million
Douglas Corporation High levels of PFCs in Lake Calhoun -- traced through stormwater samples to Douglas Corporation, a plating facility. Source -- air venting from plating baths onto roof. PFCs were discharged from roof through stormwater into stormwater pond, Bass Lake, Lake Calhoun and connecting lakes. Lake Calhoun (and connecting lakes) -- listed as impaired waters with fish consumption advisories for PFOS. PFCs found in groundwater above drinking water limits, but no receptors currently affected. 18
Douglas Corporation Schedule of Compliance in 2016. Violations were primarily water quality violations (PFCs as a pollutant). Agreement required Douglas to: Capture or treat all stormwater from the roof. Continue monitoring stormwater and stormwater pond; investigate, and, if necessary, remediate groundwater contamination. Remove sediments from stormwater pond. MPCA reserved right to pursue natural resource damage claims. 19
