State-by-State Regulation of PFAS Substances in Drinking Water

Bryan Cave Leighton Paisner
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Many states have expressed frustration with the lack of an enforceable federal per- and polyfluoroalkyl substances (“PFAS”) drinking water standard, and have started the process of regulating PFAS in drinking water themselves.  As a result, states have adopted a patchwork of regulations and standards that present significant challenges to impacted industries.  This client alert focuses on the maximum contaminant levels (“MCLs”), as well as guidance and notification levels for PFAS – typically perfluorooctane sufonic acid (“PFOS”) and perflurooctanic acid (”PFOA”)  – in drinking water that have been enacted or proposed by various states.

1. State Regulations

The following chart is current as of January 19, 2021.  Some states, including Rhode Island and Washington, have proposed Drinking Water regulations for PFAS, reinforcing the fact that this is an area of regulation that is developing quickly.  In addition, President Biden’s Environmental Justice Plan includes a commitment to set “enforceable limits for PFAS in the Safe Drinking Water Act,” presumably for PFOA and PFOS, so the entire country may soon be subject to enforceable MCLs for at least those two PFAS compounds.

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Participating States Concentration Level Type of Regulation Adoption Status
California 5.1 ppt PFOA (Notification) Regulation and Related Information
Michigan 6 ppt PFNA (MCL) Regulation and Related Information
California 6.5 ppt PFOS (Notification) Regulation and Related Information
Michigan 8 ppt PFOA (MCL) Regulation and Related Information
New York 10 ppt PFOA and PFAS (MCL) Regulation and Related Information
New Hampshire 11 ppt PFNA (MCL) Regulation and Related Information 
New Hampshire 12 ppt PFOA (MCL) Regulation and Related Information 
New Jersey 13 ppt PFNA and PFOS (MCL) Regulation and Related Information
New Jersey 14 ppt PFOA (MCL) Regulation and Related Information
Minnesota 15 ppt PFOS (Guidance) Health Advisory
New Hampshire 15 ppt PFOS (MCL) Regulation and Related Information 
Michigan 16 ppt PFOS (MCL) Regulation and Related Information
New Hampshire 18 ppt PFHxS (MCL) Regulation and Related Information 
Massachusetts 20 ppt (Stated in the regulation as 20 ng/L) 6 PFAS Substances combined — PFOA, PFOS, PFHxS, PFNA, PFHpA, and PFDA (MCL) Regulation and Related Information
Vermont 20 ppt (Stated in the regulation as 0.000020 mg/L) 5 PFAS substances combined:  PFHpA, PFHxS, PFNA, PFOS and PFOA (MCL) Regulation and Related Information
Ohio 21 ppt PFNA (Guidance) Statewide PFAS Action Plan and Related Information
Minnesota 35 ppt PFOA (Guidance) Health Advisory
Minnesota 47 ppt PFHxS (Guidance) Health Advisory
Michigan 51 ppt PFHxS (MCL) Regulation and Related Information
Connecticut 70 ppt 5 PFAS substances combined:  PFHpA, PFHxS, PFNA, PFOS, and PFOA (Notification) Health Advisory
AlaskaColoradoDelawareMaineNew Mexico, and Ohio 70 ppt Follow the EPA Standard:  PFOS and PFOA combined (Notification) Various Regulations or a Maximum Exposure Guideline
Ohio 140 ppt PFHxS (Guidance) Statewide PFAS Action Plan and Related Information
North Carolina 140 ppt GenX (Guidance) Health Advisory
Michigan 370 ppt HFPO-DA (MCL) Regulation and Related Information
Michigan 420 ppt PFBS (MCL) Regulation and Related Information
Ohio 700 ppt Gen X (Guidance) Statewide PFAS Action Plan and Related Information
Minnesota 2,000 ppt PFBS (Guidance) Health Advisory
Minnesota 7,000 ppt PFBA (Guidance) Health Advisory
Ohio 140,000 ppt PBFS (Guidance) Statewide PFAS Action Plan and Related Information
Michigan 140,000 ppt PFHxA (MCL) Regulation and Related Information
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No regulations:

Alabama, Arizona, Arkansas, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming

Key:

Notification A corporate representative has to inform the appropriate state official that the drinking water in the source (public well, supply tank, etc.) is above the limit.
Guidance The state establishes recommended concentration limits for one or more PFAS compounds, but no notification or other action is required if concentrations exceed the recommended limits.
MCL MCLs set the maximum amount of a compound that can be present in drinking water.  Treatment facilities that supply drinking water must ensure that they meet these limits, and can do so by treating and filtering the drinking water, and by limiting the upstream discharge of contaminants through permits.

2. How Do These Limits Impact Businesses?

 MCLs set the maximum concentration of a given contaminant that can be present in drinking water.  Publicly owned treatment works (“POTWs”) and drinking water systems are required to ensure that drinking water distributed to the public meets these limits.  In order to do that, POTWs and state agencies often include discharge limits in the permits of upstream dischargers to ensure that the treatment facility can comply with the MCL.

Businesses that currently or historically have used PFAS compounds or have reason to believe that they may be present in their wastewater effluent should evaluate:  (1) whether they discharge any substances to water that are eventually used for drinking water; and (2) whether their discharge contains any of the regulated PFAS compounds.  Having that information will allow those businesses to determine whether to modify their operations to reduce or eliminate PFAS from their waste stream in anticipation of permit conditions based on the different state PFAS regulations.

3. Additional Considerations

Without a federal PFAS standard, there is a large discrepancy between the regulatory standards established by the various states.  For example, for PFAS substances in drinking water, the smallest concentration is 5.1 ppt (California; PFOA only) and one of the largest values is 140,000 ppt (Michigan; PFHxA only).  The chart below illustrates the discrepancies between the regulatory levels for PFOA and/or PFOS.

4. Conclusion

For more information on PFAS chemicals, and the regulatory and litigation risks that they pose, please visit our PFAS webpage

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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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