PFAS Update: State-by-State Regulation of PFAS Substances in Groundwater

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.

I. 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 (“HA”) of 70 ppt for PFOS and PFOA. 

With respect to the former document, we wanted to address some fundamental details:

• Date: Implemented on December 19, 2019.
• Sites: All locations that are currently undergoing federal cleanup actions.
• Requirements:
  • Apply a screening level of 40 ppt to determine if PFOA and/or PFOS is present at a site and may justify additional actions.
  • Apply EPA’s HA as the preliminary remediation goal for contaminated groundwater that is a current or potential source of drinking water.
• Clean Up: Advisory, non-binding standards that may be used for remediation activities.

While EPA’s health advisory level is not legally enforceable, and it is primarily intended to address drinking water contamination, several states have nevertheless used EPA’s recommended 70 ppt as a baseline for establishing groundwater limits. Fortunately, this creates regulatory consistency between some states. 

According to the PFAS Strategic Roadmap, EPA expects to issue proposed drinking water limits for PFOA and PFOS in 2023, but not limits for groundwater.  It is unclear how drinking water regulations will affect groundwater regulations at this time.   

II. State Regulations

The snapshot provided below is current as of April 20, 2022, but it is important to note that this is a rapidly developing regulatory space.  Some states, such as Illinois, North Carolina, and Rhode Island, have proposed additional groundwater regulations for various PFAS substances which may take effect soon.  Businesses should consider whether they currently use or discharge any PFAS compounds, and if so, evaluate if any state regulations 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.

No regulations:

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

Key:

III. Additional Information

The variation in the different groundwater standards that the states have adopted is remarkable.  The most restrictive concentration is 2 ppt (Illinois; PFOA only), and the most lenient concentration is 667,000 ppt (Nevada; PFBS only).  For additional detail, the following chart only illustrates the discrepancies among the states in the concentration levels for PFOS and/or PFOA. 

IV. Conclusion

Businesses operating in the 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.

For more information on PFAS chemicals, and the regulatory and litigation risks that they pose, please visit our PFAS webpage.  If you have a question about how to manage PFAS risk in any jurisdiction, contact Tom Lee, John Kindschuh, Emma Cormier, or any other member of our PFAS team at Bryan Cave Leighton Paisner LLP.

[1] Chloroperfluoropolyether carbonates (“ClPFPECAs”) have been used as processing aids, usually in food processing equipment or food contact articles.  Additional information regarding ClPFPECAs can be found at a publication from the New Jersey Department of Environmental Protection.

[2] Hawaii has 16 additional regulations, including the following: PFNA and PFDA (.004 µg/L); PFUnDA (.01 µg/L); PFDoDA and PFTrDA (.013 µg/L); PFHxS (.019 µg/L); PFHpS and PFDS (.02 µg/L); PFOSA (.024 µg/L);  PFTeDA (.13 µg/L); HFPO-DA (.16 µg/L); PFHpA (0.4 µg/L); PFBS (.6 µg/L); PFPeA (.8 µg/L); PFHxA (4.0 µg/L ); and PFBA (7.6 µg/L).

[3] Texas has 15 additional regulations, including the following:  PFHxS, PFHxA, and PFPeA (93 ppt); PFNA, PFDS, PFUnA, PFOSA, PFTrDA, PFTeA, and PFDoA (290 ppt); PFDA (370 ppt); PFOS and PFHpA (560 ppt); PFBS (34,000 ppt); and PFBA (71,000 ppt).  A reader-friendly summary of these limitations can be found at a publication from the Reese Air Force Base.