PFAS Update - States Continue to Move Ahead

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It’s hard to find a relevant regulatory agency in the United States that isn’t regulating per- and poly-fluorinated alkyl substances (PFAS). EPA describes PFAS presence in the environment as “one of the most pressing issues facing EPA, states, and regions.” Regulators and researchers have associated PFAS with firefighting foams used to extinguish fires at refineries and petrochemical facilities, and in products used in the energy sector, such as surfactants and hydraulic fluids. Regulatory activity is occurring at the federal level, but states continue to make more definitive decisions in legislation, regulation and policy. This article provides a short summary of recent developments of note.

Federal – EPA, the Department of Defense (DOD), and other sponsors announced on August 25 a “technical challenge” to identify options for PFAS destruction other than incineration. https://www.epa.gov/innovation/innovative-ways-destroy-pfas-challenge. Earlier this year, advocacy groups filed a lawsuit under the National Environmental Policy Act challenging DOD’s contract awards for incineration of PFAS-containing firefighting foam. EPA and DOD will hold a webinar on September 16 for stakeholders interested in the challenge.

State Drinking Water Limits

Four states recently adopted drinking water maximum contaminant limits (MCLs) for various PFAS. This essentially doubles the number of states with limits for perfluorooctane sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) that are more stringent than EPA’s 70 ppt guidelines.

Michigan – The Department of Environment, Great Lakes, and Energy issued drinking water limits for specific PFAS, effective August 3. The limits are:

PFAS Substance

MCL (ppt)

Hexafluoropropylene oxide dimer acid (HFPO-DA)

370

Perfluorobutane sulfonic acid (PFBS)

420

Perfluorohexane sulfonic acid (PFHxS)

51

Perfluorohexanoic acid (PFHxA)

400,000

Perfluorononanoic acid (PFNA)

6

PFOS

16

PFOA

8

 

The regulations also set granular activated carbon or an “equally efficient technology” as the best technology for achieving compliance with the PFAS drinking water limits.

New Hampshire – On July 23, the state legislature set maximum contaminant limits for specific PFAS:

PFAS Substance

MCL (ppt)

PFOA

12

PFOS

15

PFHxS

18

PFNA

11

 

Regulated water systems have until June 30, 2022 to achieve compliance. The law also requires insurers to cover blood testing for PFAS. The legislature’s action adopts regulations previously issued by the New Hampshire Department of Environmental Services that were stayed by preliminary injunction in December 2019.

New Jersey – The Department of Environmental Protection (DEP) adopted drinking water limits of 14 ppt for PFOA and 13 ppt for PFOS. DEP adopted groundwater quality standards at the same levels.

New York – On July 30, the Department of Health adopted 10 ppt limits for both PFOS and PFOA. Large water systems must begin testing within 60 days.

State Aqueous Film-Forming Foam (AFFF) Prohibitions

Kentucky – Restrictions on use of class B firefighting foam with intentionally added PFAS for training or testing went into effect on July 15.

Maryland – Restrictions on use of PFAS AFFF for training or testing purposes were enacted by the legislature. Effective date is October 1, 2021.

Minnesota –Restrictions on use of class B firefighting foam with intentionally added PFAS for training or testing went into effect on July 1. Also, as of July 1, discharges, uses or releases of PFAS-containing firefighting foam must be reported to the Minnesota Fire Incident Reporting System within 24 hours.

Actions to Watch

The advancement of state regulation of PFAS in drinking water also prompts discussion of and measures for funding PFAS-related activities. These activities include testing, alternative supplies, customer notification, treatment technology, and remediation. Water systems are actively tracking such costs and seeking opportunities to recoup their expenses. One recent example is the adoption of a resolution by the Water Division of the California Public Utilities Commission that allows certain water systems to establish accounts for tracking such costs for a future request to pass them along to ratepayers. Such records may also be important in any future litigation against persons alleged to be responsible for PFAS contamination.

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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