PFAS Update: Current State-by-State Groundwater Regulations

Bryan Cave Leighton Paisner
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In the absence of federal cleanup standards for per- and polyfluoroalkyl substances (“PFAS”) in groundwater, several states have started the process of regulating PFAS in groundwater themselves.  As a result, states have adopted a patchwork of regulations and guidance standards which presents 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.

Federal Health Recommendations and Advisory

Although no legally binding standards have been issued at the federal level, the United States Environmental Protection Agency (“EPA”) has issued two influential documents:  (1) Interim Recommendations to Address Groundwater Contaminated with PFOA and PFOS; and (2) a Lifetime Drinking Water Health Advisory Level of 70 ppt for PFOS and PFOA.  While EPA’s health advisory level is non-binding, and is primarily intended to address drinking water contamination, several states have nevertheless used the EPA’s recommended 70 ppt as a baseline for establishing groundwater limits, which fortunately does create some regulatory consistency between some states. 

State Regulations

The snapshot provided below is current as of July 19, 2021, but it is important to note that this is a rapidly developing regulatory space.  Some states, such as North Carolina, Pennsylvania, Rhode Island, and Wisconsin have proposed groundwater regulations for PFAS which may take effect soon, and more state actions, as well as possible federal action, are expected to be announced later this year.  All of which means that businesses should consider whether they currently use or discharge any PFAS compounds, and if so, evaluate what state regulations may 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.  

 

Participating States

Concentration Level

Type of Regulation

Adoption Status

Illinois

2 ppt (stated by the Illinois Pollution Control Agency as 2 ng/L)

PFOA (Guidance)

Regulation (still in draft form) and Related Information

Michigan

6 ppt

PFNA (Clean Up)

Regulation and Related Information

Michigan

8 ppt

PFOA (Clean Up)

Regulation and Related Information

New Hampshire

11 ppt

PFNA (Clean Up)

Regulation and Related Information  

New Hampshire

12 ppt

PFOA (Clean Up)

Regulation and Related Information  

New Jersey

13 ppt

PFNA and PFOS (Clean Up)

Regulation and Related Information

Illinois

14 ppt (stated by the Illinois Pollution Control Agency as 14 ng/L)

PFOS (Guidance)

Regulation (still in draft form) and Related Information

New Jersey

14 ppt

PFOA (Clean Up)

Regulation and Related Information

New Hampshire

15 ppt

PFOS (Clean Up)

Regulation and Related Information  

Minnesota

15 ppt

PFOS (Guidance)

Health Advisory Level

Michigan

16 ppt

PFOS (Clean Up)

Regulation and Related Information

New Hampshire

18 ppt

PFHxS (Clean Up)

Regulation and Related Information  

Massachusetts

20 ppt (stated in the regulation as .02 ppb)

6 PFAS Substances combined -- PFOA, PFOS, PFHxS, PFNA, PFHpA, and PFDA (Clean Up)

Regulation and Related Information

Vermont

20 ppt (stated in the regulation as .02 µg/L)

5 PFAS substances combined:  PFHpA, PFHxS, PFNA, PFOS and PFOA (Notification)

Regulation and Related Information

Minnesota

35 ppt

PFOA (Advisory)

Health Advisory Level (see page 181)

Minnesota

47 ppt

PFHxS (Advisory)

Health Advisory Level (see page 180)

Michigan

51 ppt

PFHxS (Clean Up)

Regulation and Related Information

Colorado

70 ppt

Site-specific Standardfor PFOA and PFOS (Clean Up)

Site-Specific Groundwater Quality Standard

Delaware, Florida, Montana, and Rhode Island

70 ppt

Follow the EPA Health Advisory Level: PFOS and PFOA combined (Guidance and Notification)

Delaware:  Guidance Policy

Florida:  Guidance Plan

Montana:  Guidance Standard

Rhode Island: Notification Standard

Illinois

140 ppt (stated by the Illinois Pollution Control Agency as 140 ng/L)

PFHxS (Guidance)

Regulation (still in draft form) and Related Information

Texas

290 ppt, etc.

16 Different PFAS Substances (Clean Up)

Protective Concentration Levels

Michigan

370 ppt

HFPO-DA (Clean Up)

Regulation and Related Information

Michigan

420 ppt

PFBS (Clean Up)

Regulation and Related Information

North Carolina

2,000 ppt

PFOA (Guidance)

Regulation and Related Information

Illinois

2,100 ppt (stated by the Illinois Pollution Control Agency as 140,000 ng/L)

PFBS (Guidance)

Regulation (still in draft form) and Related Information

Michigan

400,000 ppt

PFHxA (Clean Up)

Regulation and Related Information

Alaska

400,000 ppt (stated in the regulation as 0.4 µg/L)

PFOA and PFOS separately (Clean Up)

Regulation (18 AAC 25) and Related Information

Maine

400,000 ppt (stated in the regulation as 0.4 ppb)

PFOA and PFOS separately (Guidance)

Note:  Maine has both residential and construction standards

Maximum Exposure Guideline

Illinois

560,000 ppt (stated by the Illinois Pollution Control Agency as 560,000 ng/L)

PFHxA (Guidance)

Regulation (still in draft form) and Related Information

No regulations:

Alabama, Arizona, Arkansas, California, Connecticut, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nebraska, Nevada, New Mexico, New York, North Dakota, Oklahoma, Oregon, Ohio, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming

Key:

Notification

A corporate representative must inform the appropriate state official that the groundwater is above the stated limit.

Guidance

These levels are not binding limits, but they can serve as the basis for regulatory action, and are a useful tool for due diligence and risk assessment.

Clean Up

Investigation and remediation is usually required when concentration levels exceed the clean-up threshold.  This is usually expressed by groundwater quality standards that identify specific clean-up criteria. 

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 2 ppt (Illinois; PFOA only) and the most lenient concentration is 560,000 ppt (Illinois; PFHxA only).  The following chart illustrates the discrepancies in the concentration levels only for PFOA and/or PFOS. 

Conclusion

Businesses operating in the 16 states that have already enacted some form of regulation 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.

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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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