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Summary

In the absence of an enforceable federal drinking water standard for per- and polyfluoroalkyl substances (“PFAS”), many states have started regulating PFAS compounds in drinking water.  The result is a patchwork of regulations and standards of varying levels, 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 across the United States.

I. Federal Health Advisory Levels

On June 15, 2022, the United States Environmental Protection Agency (“EPA”) issued health advisories (“HAs") for four PFAS substances in drinking water.  The values are as follows: 

PFAS Substance

Concentration

PFOA (Perflurooctanic acid)

0.004 ppt

PFOS (Perfluorooctane sufonic acid)

0.02 ppt

Gen X Chemicals (HFPO-DA)

10 ppt

PFBS (Perfluorobutane sulfonate)

2,000 ppt

The newly issued HAs for PFOA and PFOS supersede and dramatically reduce EPA’s 2016 Drinking Water Health Advisory Level of 70 ppt for PFOS and PFOA.

EPA's HAs are non-enforceable, but are intended to provide technical information to state agencies and other public health officials regarding health effects, analytical methodologies, and treatment technologies associated with drinking water PFAS contamination.  In fact, both the Chemours Company and the American Chemistry Council recently filed lawsuits against EPA to challenge these HAs. 

Certain industry groups and states, such as Georgia, have stated that the HAs are “significantly below” the current levels of detection.  The Cambridge Water Department in Massachusetts further clarifies how the HAs are at “microscopic” levels:  “These new health advisories are also below current reliable detection abilities of scientific equipment (Scientists can currently detect PFAS compounds down to 2 parts per trillion).”  Although the HAs are non-enforceable, there is significant concern from public agencies and private industries about how to appropriately react to the HAs given the perceived impossibility of testing at these levels. 

Many have suggested that values this low effectively equates to a statement that any level of PFOA or PFOS in drinking water may cause health effects, which raises significant testing, treatment, and permitting considerations.  For example, the State of New York asserted that to comply with an enforceable MCL of .004 for PFOA “would cost $1.5 billion statewide for upgrades and a further $78 million per year for operation and maintenance.”

For additional information, please refer to BCLP’s Client Alert regarding the new HA levels.

According to the PFAS Strategic Roadmap, EPA expects to issue proposed drinking water limits, or MCLs, for PFOA and PFOS in the fall of 2023.  A national drinking water limit will require the entire country to evaluate the concentration of these two compounds in drinking water, and to implement treatment systems and permit limits to achieve the MCLs.

II. State Regulations

Until the federal government enacts MCLs for PFOA and PFOS, the regulatory landscape for PFAS compounds in drinking water consists of an array of widely-varying state-promulgated standards and regulations.  For example, concentrations range from 5.1 ppt (California; PFOA only), and 667,000 ppt (Nevada; PFBS only), depending on the PFAS compound, the nature of the regulation, and the state’s view on levels which may result in health effects.  For further detail, the chart below illustrates the significance of the discrepancies between the regulatory levels, only for PFOA and/or PFOS.

The map and chart is current as of August 29, 2022. 

Delaware, Maine, and Rhode Island have enacted legislation to establish MCLs for PFAS compounds for drinking water, so implementing regulations in those jurisdictions may be forthcoming.  Moreover, Wisconsin is currently involved in an administrative process to formally establish drinking water standards.  Additionally, numerous states, including Iowa, Kentucky, North Carolina, Ohio, Pennsylvania, South Carolina, and West Virginia, have proposed, but not yet promulgated, drinking water regulations for PFAS, although Pennsylvania appears to be close to doing so.  These actions underscore that state-driven guidance and requirements surrounding the PFAS drinking water regulations are developing quickly throughout the country.

Participating States

Concentration Level

Chemical(s) and Type of Regulation

Regulatory Information

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

Washington

9 ppt

PFNA (Notification)

Rules and Related Information

Connecticut

10 ppt

PFOS (Notification)

Action Level

Washington

10 ppt

PFOA (Notification)

Rules 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  

Connecticut

12 ppt

PFNA (Notification)

Action Level

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  

Washington

15 ppt

PFOS (Notification)

Rules and Related Information

Connecticut

16 ppt

PFOA (Notification)

Action Level

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 0.000002 mg/L)

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

Regulation and Related Information

Maine

20 ppt (Stated in the Interim Drinking Water Standard as 20 ng/L)

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

Interim Drinking Water Standard and Related Information

Rhode Island

20 ppt

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

Interim Drinking Water Standard and Related Information

Ohio

21 ppt

PFNA (Guidance)

Statewide PFAS Action Plan and Related Information

Oregon

30 ppt

4 PFAS substances combined:  PFOS, PFOA PFHxS, and PFNA (Guidance)

Health Advisory and Related Information

Minnesota

35 ppt

PFOA (Guidance)

Health Advisory

Hawaii

40 ppt, etc.[1] (Stated by the Hawaii Department of Health in µg/L)

PFOA and PFOS; 16 other PFAS substances (Advisory)

Environmental Action Levels (Table D-3a)

Minnesota

47 ppt

PFHxS (Guidance)

Health Advisory

Connecticut

49 ppt

PFHxS (Notification)

Action Level

Michigan

51 ppt

PFHxS (MCL)

Regulation and Related Information

Washington

65 ppt

PFHxS (Notification)

Rules and Related Information

Colorado

70 ppt (Stated in the regulation as 70 ng/L)

3 PFAS substances combined:  PFOS, PFOA, and PFNA (Guidance)

Translation Level and Related Information

Alaska, Delaware, New Mexico, and Ohio

70 ppt

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

Alaska:  Action Level

Delaware:  Notification Policy

New Mexico:  Toxic Pollutant Standard

Ohio:  Statewide PFAS Action Level

Ohio

140 ppt

PFHxS (Guidance)

Statewide PFAS Action Plan and Related Information

Maryland

140 ppt

PFHxS (Guidance)

Health Advisory

North Carolina

140 ppt

GenX or HFPO-DA (Guidance)

Health Advisory

Washington

345 ppt

PFBS (Notification)

Rules and Related Information

Michigan

370 ppt

Gen X or HFPO-DA (MCL)

Regulation and Related Information

Michigan

420 ppt

PFBS (MCL)

Regulation and Related Information

California

500 ppt (Stated in the regulation as 0.5 ppb)

PFBS (Notification)

 

Regulation and Related Information

Nevada

667 ppt (stated in the regulation as .667 µg/L)

PFOA and PFOS (Guidance)

Basic Comparison Levels

Colorado

700 ppt (Stated in the regulation as 700 ng/L)

PFHxS (Guidance)

Translation Level and Related Information

Ohio

700 ppt

Gen X or HFPO-DA (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

PFBS (Guidance)

Statewide PFAS Action Plan and Related Information

Colorado

400,000 ppt (Stated in the regulation as 400,000 ng/L)

PFBS (Guidance)

Translation Level and Related Information

Michigan

400,000 ppt

PFHxA (MCL)

Regulation and Related Information

Nevada

667,000 ppt (stated in the regulation as 667 µg/L)

PFBS (Guidance)

Basic Comparison Levels

 

No PFAS drinking water regulations (as of the date of publication):

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

Key:

Notification

A corporate representative may have to inform an 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.  A water supply system also may have to inform its customers if there are any samples that exceed the PFAS values.

Guidance

The state establishes recommended concentration limits for one or more PFAS substances, but no notification or other action is required if concentrations exceed the recommended limits.

MCL

MCLs establish the maximum amount of a PFAS compound that can be present in drinking water.  Treatment facilities that supply drinking water must ensure that these limits are met by treating and filtering the drinking water, and also by limiting the discharge of PFAS compounds through permits.

 

III. 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 systems 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 the following considerations: 

  • Whether their wastewater discharges, following treatment by the POTW or other treatment facilities, are eventually released to sources that are used for drinking water;
  • Whether their discharge contains any of the PFAS compounds that are regulated in their jurisdiction; and
  • Whether they are likely to be subject to permit conditions limiting the allowable concentration of PFAS compounds in their wastewater discharges. 

Acquiring 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.

IV. Conclusion

The regulation of PFAS substances in drinking water will continue 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 compounds in drinking water and the efficacy of different MCLs.  In furtherance of this conclusion, a American Chemical Society report asserted in February of 2022 that PFAS substances were detected in 60% of drinking water public supply wells.

For more information on PFAS chemicals, and the regulatory and liability 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. Hawaii has 16 additional regulations, including the following: PFDA (.004 µg/L); PFNA (.0044 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); PFHpA (.04 µg/L); PFTeDA (.13 µg/L); HFPO-DA (.16 µg/L); PFBS (.6 µg/L); PFPeA (.8 µg/L); PFHxA (4.0 µg/L ); and PFBA (7.6 µg/L).

This document provides a general summary and is for information/educational purposes only. It is not intended to be comprehensive, nor does it constitute legal advice. Specific legal advice should always be sought before taking or refraining from taking any action.