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Although the Federal Environmental Protection Agency issued its PFAS Action Plan on February 14, 2019 (see our March 27, 2019, client alert), many states have expressed frustration with EPA’s proposed plan 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 different state regulations creating guidance, notification, and cleanup levels for PFAS – typically PFOA and PFOS – in drinking water.

The snapshot of state drinking water regulations below is provided, in part, to assist businesses in evaluating their PFAS risk and compliance strategy in two contexts: (a) real estate and corporate acquisition due diligence, and (b) to determine whether existing facilities with legacy contamination might benefit from proactive remediation to limit potential liability.1

Concentration Level

Participating States

Drinking Water Standard

Adoption Status

10 ppt

New York

PFOA and PFOS (Proposed MCLs – various penalties, possible Clean Up)

Pre-Regulatory Recommendation:  Proposed by the New York Drinking Water Quality Council

11 ppt

New Hampshire

PFNA (Proposed MCL – various penalties, possible Clean Up)

Pending (New Hampshire Dep’t of Env. Services “NHDES” Final Rulemaking Proposal). 

12 ppt

New Hampshire

PFOA (Proposed MCL – various penalties, possible Clean Up)

Pending (NHDES Final Rulemaking Proposal).  Probably will change the current 70 ppt standard.

13 ppt

California

PFOS (Notification)

Approved (Regulation)

New Jersey

PFNA and PFOS (Notification)

Approved for PFNA (Regulation); Pending for PFOS (2019 NJ Reg 520031)

14 ppt

California

PFOA (Notification)

Approved (Regulation)

New Jersey

PFOA (Notification)

Pending (2019 NJ Reg 520031)

15 ppt

Minnesota

PFOS (Guidance)

Approved (Health Advisory)

 

 

 

 

15 ppt

New Hampshire

PFOS (Proposed MCL – various penalties, possible Clean Up)

Pending (NHDES Final Rulemaking Proposal).  Probably will change the current 70 ppt standard.

18 ppt

New Hampshire

PFHxS (Proposed MCL – various penalties, possible Clean Up)

Pending (NHDES Final Rulemaking Proposal)

20 ppt

Vermont

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

Approved (Groundwater Quality Enforcement Standard)

20 ppt

Rhode Island

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

Pending (2019 RI HB 6064)

35 ppt

Minnesota

PFOA (Guidance)

Approved (Health Advisory)

47 ppt

Minnesota

PFHxs (Guidance)

Approved (Health Advisory)

 

70 ppt

Massachusetts

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

Approved (Regulation and Guideline)

New Hampshire

2 PFAS substances combined:  PFOA and PFOS (Clean Up)

Approved (Ambient Groundwater Quality Standard and Regulation)

Connecticut

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

Approved (Health Advisory)

Alaska, California, Colorado, Delaware, Maine, Michigan, and New Mexico

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

Approved (Various Regulations, or a Maximum Exposure Guideline, etc.)

140 ng/L (140,000 ppt)

North Carolina

GenX (Guidance)

Approved (Health Advisory)

No Regulation

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

Key

Notification - A representative has to inform the appropriate state official that the drinking water in that source (public well, supply tank, etc.) is above the limit.

Guidance - A department in that state provided limitations for PFAS regulations, but no notification is required.

Clean Up - The state requires that the source be remediated or decontaminated when a particular PFAS amount is surpassed.

 

This client alert reflects the status of state PFAS regulations only as of July 1, 2019.  If you have a question about how to manage PFAS risk in transactions or to proactively remediate PFAS in a specific jurisdiction, please contact Tom Lee at Bryan Cave Leighton Paisner LLP.


1. To put the State regulations summary below in context, note that EPA issued a Health Advisory (“HA”) concentration of 70 ppt for PFOA and PFOS in 2016.  The EPA HA level is a combined concentration for total PFOA and PFOS in drinking water.

 

 

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.