Delaware’s Maximum Contaminant Levels for PFOA and PFOS Expected by this Summer

Fox Rothschild LLP

Fox Rothschild LLP

On October 20, 2021, Delaware Governor John Carney signed into law House Bill 8, which is enacted as Delaware’s Drinking Water Protection Act (29 Del. C. §§ 8090-8094).

The Act contains two primary directives requiring: (1) establishment of maximum contaminant levels (MCLs) for a pair of non-polymeric perfluoroalkyl and polyfluoroalkyl substances (PFAS); and (2) a statewide survey of Delaware’s drinking water for PFAS.

PFAS Maximum Contaminant Levels

The first directive under the Act tasks Delaware’s Division of Public Health (the “Division”) and Delaware’s Department of Natural Resources and Environmental Control (DNREC) to coordinate with each other to establish MCLs. Taking into consideration the United States Environmental Protective Agency’s (USEPA) “evidence-based standards and assessments,” the agencies are to establish MCLs for two PFAS: perfluorooctanoic acid and its salts (PFOA) and perfluorooctanesulfonic acid (or perfluorooctane sulfonate) and its salts (PFOS).

By July 20, 2022 (i.e., within 9 months of the effective date of the Act), the Division is required to conduct public hearings on the proposed MCLs. After the final MCLs are established—and as the agencies acquire more information over time from USEPA assessments, peer-reviewed journals, and Delaware State-wide Survey data—the Division should periodically revise their MCLs to the extent necessary. The Legislature has not set an overall timetable for the promulgation of the MCLs.

Delaware is not the first state to pass this type of legislation or promulgate MCLs under existing authorities: (1) other states (e.g., New York, New Hampshire, etc.) have promulgated  MCLs pursuant to similar enactments; and (2) New Jersey, for example, promulgated MCLs for PFAS under existing law.  Although the federal government has indicated its intent to set federal MCLs, it has thus far only issued nonbinding Drinking Water Health Advisories for PFOA and PFOS, leading Delaware and other states to take  initiative to promulgate their own.

Statewide PFAS Survey

The second directive has more immediate consequences. It mandates that DNREC coordinate with the Division to survey drinking water sources across Delaware for PFAS. And by January 1, 2022, DNREC was required to disclose the survey results to the Governor and General Assembly along with recommendations for addressing any PFAS contamination that the survey uncovered. As of the date of this article, the author has been unable to locate a public copy of the statewide survey results or the plan to address any contamination. All said, DNREC’s investigation and survey results should shed light on the presence of PFAS in Delaware’s drinking water, groundwater, and surface water.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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