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.

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 Level of 70 ppt for PFOS and PFOA.  While EPA’s health advisory level is non-binding, and is primarily intended to address drinking water contamination, several states have nevertheless used the EPA’s recommended 70 ppt as a baseline for establishing groundwater limits, which fortunately does create some regulatory consistency between some states.

State Regulations

The snapshot provided below is current as of July 19, 2021, but it is important to note that this is a rapidly developing regulatory space.  Some states, such as North CarolinaPennsylvaniaRhode Island, and Wisconsin have proposed groundwater regulations for PFAS which may take effect soon, and more state actions, as well as possible federal action, are expected to be announced later this year.  All of which means that businesses should consider whether they currently use or discharge any PFAS compounds, and if so, evaluate what state regulations may 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.

  

Participating States

 

Concentration Level

 

Type of Regulation

 

Adoption Status

 

Illinois

 

2 ppt (stated by the Illinois Pollution Control Agency as 2 ng/L)

 

PFOA (Guidance)

 

Regulation (still in draft form) and Related Information

 

Michigan

 

6 ppt

 

PFNA (Clean Up)

 

Regulation and Related Information

 

Michigan

 

8 ppt

 

PFOA (Clean Up)

 

Regulation and Related Information

 

New Hampshire

 

11 ppt

 

PFNA (Clean Up)

 

Regulation and Related Information

 

New Hampshire

 

12 ppt

 

PFOA (Clean Up)

 

Regulation and Related Information

 

New Jersey

 

13 ppt

 

PFNA and PFOS (Clean Up)

 

Regulation and Related Information

 

Illinois

 

14 ppt (stated by the Illinois Pollution Control Agency as 14 ng/L)

 

PFOS (Guidance)

 

Regulation (still in draft form) and Related Information

 

New Jersey

 

14 ppt

 

PFOA (Clean Up)

 

Regulation and Related Information

 

New Hampshire

 

15 ppt

 

PFOS (Clean Up)

 

Regulation and Related Information

 

Minnesota

 

15 ppt

 

PFOS (Guidance)

 

Health Advisory Level

 

Michigan

 

16 ppt

 

PFOS (Clean Up)

 

Regulation and Related Information

 

New Hampshire

 

18 ppt

 

PFHxS (Clean Up)

 

Regulation and Related Information

 

Massachusetts

 

20 ppt (stated in the regulation as .02 ppb)

 

6 PFAS Substances combined — PFOA, PFOS, PFHxS, PFNA, PFHpA, and PFDA (Clean Up)

 

Regulation and Related Information

 

Vermont

 

20 ppt (stated in the regulation as .02 µg/L)

 

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

 

Regulation and Related Information

 

Minnesota

 

35 ppt

 

PFOA (Advisory)

 

Health Advisory Level (see page 181)

 

Minnesota

 

47 ppt

 

PFHxS (Advisory)

 

Health Advisory Level (see page 180)

 

Michigan

 

51 ppt

 

PFHxS (Clean Up)

 

Regulation and Related Information

 

Colorado

 

70 ppt

 

Site-specific Standardfor PFOA and PFOS (Clean Up)

 

Site-Specific Groundwater Quality Standard

 

Delaware, Florida, Montana, and Rhode Island

 

70 ppt

 

Follow the EPA Health Advisory Level: PFOS and PFOA combined (Guidance and Notification)

 

Delaware:  Guidance Policy

 

Florida:  Guidance Plan

 

Montana:  Guidance Standard

 

Rhode Island: Notification Standard

 

Illinois

 

140 ppt (stated by the Illinois Pollution Control Agency as 140 ng/L)

 

PFHxS (Guidance)

 

Regulation (still in draft form) and Related Information

 

Texas

 

290 ppt, etc.

 

16 Different PFAS Substances (Clean Up)

 

Protective Concentration Levels

 

Michigan

 

370 ppt

 

HFPO-DA (Clean Up)

 

Regulation and Related Information

 

Michigan

 

420 ppt

 

PFBS (Clean Up)

 

Regulation and Related Information

 

North Carolina

 

2,000 ppt

 

PFOA (Guidance)

 

Regulation and Related Information

 

Illinois

 

2,100 ppt (stated by the Illinois Pollution Control Agency as 140,000 ng/L)

 

PFBS (Guidance)

 

Regulation (still in draft form) and Related Information

 

Michigan

 

400,000 ppt

 

PFHxA (Clean Up)

 

Regulation and Related Information

 

Alaska

 

400,000 ppt (stated in the regulation as 0.4 µg/L)

 

PFOA and PFOS separately (Clean Up)

 

Regulation (18 AAC 25) and Related Information

 

Maine

 

400,000 ppt (stated in the regulation as 0.4 ppb)

 

PFOA and PFOS separately (Guidance)

 

Note:  Maine has both residential and construction standards

 

Maximum Exposure Guideline

 

Illinois

 

560,000 ppt (stated by the Illinois Pollution Control Agency as 560,000 ng/L)

 

PFHxA (Guidance)

 

Regulation (still in draft form) and Related Information

 

 

No regulations:

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

Key:

Notification A corporate representative must inform the appropriate state official that the groundwater is above the stated limit.
Guidance These levels are not binding limits, but they can serve as the basis for regulatory action, and are a useful tool for due diligence and risk assessment.
Clean Up Investigation and remediation is usually required when concentration levels exceed the clean-up threshold.  This is usually expressed by groundwater quality standards that identify specific clean-up criteria.

 

Additional Information

Without federal PFAS standards for groundwater, states have enacted a wide range regulatory concentration levels.  For example, for PFAS substances in groundwater, the most stringent concentration is 2 ppt (Illinois; PFOA only) and the most lenient concentration is 560,000 ppt (Illinois; PFHxA only).  The following chart illustrates the discrepancies in the concentration levels only for PFOA and/or PFOS.

Conclusion

Businesses operating in the 16 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, or any other member of our PFAS team at Bryan Cave Leighton Paisner LLP.