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

Bryan Cave Leighton Paisner
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Summary

In the absence of an enforceable federal per- and polyfluoroalkyl substances (“PFAS”) drinking water standard, many states have embarked on the process of regulating PFAS compounds in drinking water.  The result is a patchwork of regulations and standards of varying stringency which presents significant operational and compliance challenges to impacted industries.  This client alert surveys the maximum contaminant levels (“MCLs”), as well as guidance and notification levels, for PFAS compounds – typically perfluorooctane sufonic acid (“PFOS”) and perflurooctanic acid (”PFOA”)  – in drinking water that have been enacted or proposed at the state level.

1. Federal Health Recommendations and Advisory

The United States Environmental Protection Agency (“EPA”) has issued a Lifetime Drinking Water Health Advisory Level of 70 ppt for PFOS and PFOA.  EPA's Health Advisory is non-enforceable and non-regulatory, but is intended to provide technical information to state agencies and other public health officials on health effects, analytical methodologies, and treatment technologies associated with drinking water PFAS contamination.  Several states have adopted the EPA’s recommended 70 ppt PFAS concentration limitation for drinking water.

2. State Regulations

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.  However, until such federal action occurs (and potentially afterwards to the extent that states continue to enact more stringent standards), the regulatory landscape for PFAS compounds in drinking water will consist of an array of widely-varying state-promulgated standards and regulations. For example, one of the smallest allowable concentrations is currently 5.1 ppt (California; PFOA only), and one of the largest values is currently 400,000 ppt (Michigan; PFHxA only).  The chart below illustrates the significance of the discrepancies between the regulatory levels for PFOA and/or PFOS.

 The map and chart is current as of June 8, 2021.  Some states, including Rhode Island and Washington, have proposed drinking water regulations for PFAS, and Virginia has approved a committee to recommend MCLs for PFAS compounds in drinking water, so further regulation in those jurisdictions may be forthcoming.  These proposals underscore that the guidance and requirements surrounding the PFAS drinking water regulations are developing quickly. 

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

Alaska, Colorado, Delaware, Maine, New Mexico, and Ohio

70 ppt

Follow the EPA Standard:  PFOS and PFOA combined (Notification and Guidance)

Alaska:  Action Level

Colorado:  Health Advisory Level

Delaware:  Guidance Policy

Maine:  Maximum Exposure Guideline

New Mexico:  Toxic Pollutant Standard

Ohio:  Statewide PFAS Action Level

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

California

500 ppt (stated in the regulation as .5 ppb)

PFBS (Notification)

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

400,000 ppt

PFHxA (MCL)

Regulation and Related Information

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 must inform the appropriate state official that a drinking water concentration in a water source owned or operated by the corporation (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 PFAS compound that can be present in drinking water.  Treatment facilities that supply drinking water must ensure that they meet these limits by treating and filtering the drinking water, and by limiting the upstream discharge of PFAS compounds through permits.

3. 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 ultimately responsible for meeting the applicable MCLs and 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 the POTW or other drinking water system to ensure that the effluent the treatment facility receives can be adequately filtered and treated to comply with the MCLs.

Businesses that currently or historically have used PFAS compounds, or have reason to believe that they may be present in their process wastewater effluent, should evaluate:  (1) whether their wastewater discharges, following treatment by the POTW or other treatment facility, are eventually released to sources that are used for drinking water; (2) whether their discharge contains any of the PFAS compounds that are regulated in their jurisdiction; and (3) whether they are likely to be subject to a permit condition limiting the allowable concentration of PFAS compounds in their wastewater discharges.  Having this information will allow businesses to determine whether they need to modify their operations to reduce or eliminate PFAS from their waste stream to achieve compliance with an existing standard, or in anticipation of likely future permit conditions.

4. Conclusion

The regulation of PFAS chemicals in drinking water is expected to increase over the next several years as additional research is conducted on potential health impacts, and as regulators at both the federal and state levels develop a deeper understanding of the prevalence of PFAS chemicals in drinking water and the efficacy of different MCLs.

[View source.]

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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