In the absence of federal cleanup standards for per- and polyfluoroalkyl substances (“PFAS”) in groundwater, numerous states have started the process of regulating PFAS in groundwater themselves. As a result, states have adopted a patchwork of regulations and guidance standards that present significant compliance challenges to impacted industries. This client alert explores the current landscape of state regulations regarding the guidance, notification, and cleanup levels for PFAS – typically perfluorooctane sulfonic acid (“PFOS”) and perfluorooctanoic acid (”PFOA”) – in groundwater.
I. Federal Health Recommendations and Advisory
Although no legally binding standards for groundwater have been issued at the federal level, the United States Environmental Protection Agency (“EPA”) has issued an influential document: Interim Recommendations to Address Groundwater Contaminated with PFOA and PFOS. The key details are:
- Date: Implemented on December 19, 2019.
- Site Applicability: All locations that are currently undergoing federal cleanup actions.
- Recommendations:
- Apply a screening level of 40 ppt for PFOA and PFOS, individually or combined, to determine if the compounds are present at a site and may justify additional actions.
- Apply EPA’s 2016 Drinking Water Health Advisory of 70 ppt for PFOA and PFOS, individually or combined, (“HA”) as the preliminary remediation goal for contaminated groundwater that is a current or potential source of drinking water.
While the HA is not legally enforceable, several states have nevertheless used EPA’s recommended 70 ppt as a baseline for establishing groundwater limits.
II. State Regulations
The snapshot provided below is current as of October 20, 2022 but it is important to note that this is a rapidly developing regulatory space. Some states, such as Illinois, North Carolina, and Rhode Island, have proposed new or revised groundwater regulations for various PFAS substances that may take effect soon.
Businesses should consider whether they currently use or discharge any PFAS compounds, and if so, evaluate if any state regulations apply, particularly if they operate in any of the below-listed jurisdictions. In addition, owners of property with legacy PFAS use, and prospective purchasers of commercial and industrial properties, should review the most current groundwater quality standards as part of the due diligence process.
No PFAS groundwater regulations (as of the date of publication):
Alabama, Arizona, Arkansas, California, Connecticut, Delaware, Georgia, Idaho, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nebraska, New Mexico, New York, North Dakota, Oklahoma, Oregon, Ohio, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, Wisconsin, and Wyoming
Key:
III. Additional Information
Without federal PFAS standards for groundwater, states have enacted a wide range regulatory concentration levels. For example, for PFAS substances in groundwater, the most stringent concentration is 0.004 ppt (Iowa; PFOA only) and the most lenient concentration is 667,000 ppt (Nevada; PFBS only). The following chart illustrates the discrepancies in the concentration levels only for PFOA and/or PFOS.
IV. Conclusion
Businesses operating in the 20 states where groundwater regulations have already been enacted should consider whether they currently use or discharge any of the regulated PFAS compounds. In addition, owners of property with legacy PFAS use, and prospective purchasers of commercial and industrial properties in these jurisdictions will increasingly need to incorporate the groundwater quality standards as part of their due diligence processes.
Chloroperfluoropolyether carbonates (“ClPFPECAs”) have been used as processing aids, usually in food processing equipment or food contact articles. Additional information regarding ClPFPECAs can be found at a from the New Jersey Department of Environmental Protection.
[2]Hawaii has 16 additional regulations, including the following: PFNA and PFDA (.004 µg/L); PFUnDA (.01 µg/L); PFDoDA and PFTrDA (.013 µg/L); PFHxS (.019 µg/L); PFHpS and PFDS (.02 µg/L); PFOSA (.024 µg/L); PFTeDA (.13 µg/L); HFPO-DA (.16 µg/L); PFHpA (0.4 µg/L); PFBS (.6 µg/L); PFPeA (.8 µg/L); PFHxA (4.0 µg/L ); and PFBA (7.6 µg/L).
[3] Texas has 15 additional regulations, including the following: PFHxS, PFHxA, and PFPeA (93 ppt); PFNA, PFDS, PFUnA, PFOSA, PFTrDA, PFTeA, and PFDoA (290 ppt); PFDA (370 ppt); PFOS and PFHpA (560 ppt); PFBS (34,000 ppt); and PFBA (71,000 ppt). A reader-friendly summary of these limitations can be found at a publication from the Reese Air Force Base.
