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Summary

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. 

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)

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

 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.  If you have a question about how to manage PFAS risk in any jurisdiction, contact Tom Lee, John Kindschuh, or any other member of our PFAS team at Bryan Cave Leighton Paisner LLP.

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.