RD681 - Establishing Regulatory Limits for PFAS, Chromium (VI), and 1,4-Dioxane in Virginia Drinking Water – October 1, 2021

Executive Summary:

The third enactment clause of 2020 Acts of Assembly Chapter 1097 (HB1257) requires the Virginia Department of Health (VDH) to submit a final report to the Chairmen of the Senate Committee on Education and Health and the House Committee on Health, Welfare and Institutions by October 1, 2021, detailing the maximum contaminant level (MCL) regulations established for per- and polyfluoroalkyl substances (PFAS), chromium (VI), and 1,4-dioxane. This report provides information about the work VDH is doing to establish the MCLs, which includes evaluating:

• PFAS contamination in drinking water (based on preliminary results from the study being performed under 2020 Acts of Assembly Chapter 611 (HB586));

• MCLs adopted by other states; treatment technologies; toxicological data and research other states and the federal government have used as the basis for limits on PFAS; and

• Requirements VDH must follow to promulgate regulations.

HB1257 required this report before the amendment to Code of Virginia § 32.1-169 (adding subsection B, which requires the Board of Health to adopt regulations establishing MCLs for PFAS, chromium (VI), and 1,4-dioxane) becomes effective on January 1, 2022, and before VDH’s PFAS work group, established pursuant to HB586, concludes its work. Hence, there is insufficient information and authority at the time of this report for VDH and the Board of Health to establish MCLs, consistent with the Public Water Supplies Law, specifically Code of Virginia § 32.1-169 B., and the Virginia Administrative Process Act (VAPA), Code of Virginia § 2.2-4000 et seq., for PFAS, chromium (VI), and 1,4-dioxane. VDH will start the process required pursuant to the VAPA to adopt regulations establishing MCLs for PFAS, chromium (VI), and 1,4-dioxane as soon as HB1257 takes effect on January 1, 2022.

VDH’s Office of Drinking Water (ODW) has provided administrative support and technical guidance to the PFAS work group, which planned, designed, and conducted the PFAS sample study required by HB586 (See Appendix 1 for a list of PFAS work group members). Information about PFAS contamination in drinking water in Virginia, which comes from the sample study, will inform the development and implementation of MCLs under Code of Virginia § 32.1-169 B. and the VAPA. The PFAS work group will need to conclude its work by September 2021 to meet the report deadline in HB586. As a result, the PFAS work group has not finalized key observations and recommendations for this report.

HB586 limited the PFAS sample study to no more than 50 waterworks or major sources of supply. With this limitation, the Department of Planning and Budget (DPB) concluded VDH could absorb the costs to form the PFAS work group, perform a literature survey, discuss results and data needed to drive regulatory decisions, and perform environmental sampling.(*1) The PFAS sample study focused on the largest waterworks in Virginia and waterworks and major sources of supply near potential sources of PFAS contamination given the legislative and financial limitations. VDH collaborated with the Virginia Department of Environmental Quality (DEQ) to identify potential sources of PFAS contamination and select waterworks for the voluntary sample study. The PFAS work group reviewed the methodology and selection process and offered guidance on improving the sample study. A few waterworks that VDH identified for inclusion in the voluntary sample study declined to participate, citing ongoing construction or other maintenance projects as reasons to not participate.

Forty-five (45) waterworks participated in the sample study. They collected a total of 63 water samples from one or more locations because, in certain cases, there were multiple water sources or entry points. Preliminary results from the sample study found PFAS in quantities above the practical quantitation level (PQL) at 15 of 63 sample locations. Samples from 48 sample locations did not contain any PFAS above the PQL.

The preliminary results indicate that PFAS are present in drinking water produced from the Potomac River and Occoquan Reservoir, two major sources of water for waterworks in Northern Virginia. The amount and specific types of PFAS in both sources are unknown because the sample study only tested finished water. Ten (10) samples from waterworks in the Northern Virginia region had at least one (1) PFAS present in a quantity above the PQL, but none were above the U.S. Environmental Protection Agency’s (EPA) health advisory level of 70 ng/L for PFOA and PFOS (individually or combined) and none exceeded any of the MCLs established by other states.

The highest detected concentration of a compound was 51 ng/L of HPFO-DA (hexafluoropropylene oxide-dimer acid), which is commonly known as Gen-X, a type of PFAS used in place of PFOA (perfluorooctanoic acid) and PFOS (perfluorooctane sulfonic acid). This was one of only two GenX detections in all of the samples tested in the PFAS sample study (the other was 4.0 ng/L). No other PFAS were detected above the PQL at the two locations with Gen-X detections.

All other PFAS detections were 14 ng/L or less. Information about PFAS contamination of drinking water in Virginia, which came from the sample study conducted pursuant to HB586, will inform the development and implementation of MCLs required by HB1257. However, with more than 1,050 community waterworks in Virginia, the majority of which are “small" (i.e., serving fewer than 3,300 consumers), the extent and level of PFAS contamination in drinking water from waterworks is still largely unknown. VDH does not know how many small waterworks use water that contains PFAS, what level is present, if any, or what the resulting implications would be for setting an MCL.

The Code of Virginia requires VDH to consider protection of public health and the financial impact of regulations in the rulemaking process. See Code of Virginia §§ 2.2-4007.04 and 32.1-170. The Safe Drinking Water Act (SDWA) also requires this evaluation. See 42 U.S.C. § 300g-1(b). If VDH establishes an MCL that would require a small waterworks to install treatment, the capital cost could be in the millions of dollars. Small waterworks could most acutely experience the impact of establishing a MCL if PFAS were found above an established MCL because they have a smaller customer base amongst whom they can spread the cost of compliance.

The occurrence of chromium (VI) and 1,4-dioxane in Virginia has been limited to testing done in 2014-2015 as part of the EPA’s Third Unregulated Contaminant Monitoring Rule (UCMR3). VDH and waterworks in Virginia have not conducted additional testing or performed a public health risk assessment of these chemicals in drinking water. A literature review revealed limited data on the occurrence, toxicity, and treatment options for both compounds. VDH lacked resources to complete the PFAS sample study and perform rigorous analysis of chromium (VI) and 1,4-dioxane prior to the effective date of the amendment to Code of Virginia § 32.1-169.

ODW will conduct additional PFAS sampling in 2021 and 2022 using $60,000 that the 2021 General Assembly appropriated and funding from EPA in the 2022 Public Water System Supervision Grant to study emerging contaminants. The report of the PFAS work group, as required under HB586, will inform the nature of the studies and sampling for PFAS. VDH cannot quantify the extent and nature of chromium (VI) and 1,4-dioxane contamination in drinking water in Virginia without additional funding.
(*1) See Department of Planning and Budget 2020 Fiscal Impact Statement for HB586ER, item #8 at: https://lis.virginia.gov/cgi-bin/legp604.exe?201+oth+HB586FER122+PDF.