Many states have expressed frustration with the lack of federal cleanup standards for per- and polyfluoroalkyl substances (“PFAS”) in groundwater, and have started the process of regulating PFAS in groundwater themselves.  As a result, states have adopted a patchwork of regulations and guidance standards that present significant challenges to impacted industries.  This client alert focuses on the different state regulations regarding the guidance, notification, and cleanup levels for PFAS – typically perfluorooctanesulfonic acid (“PFOS”) and perfluorooctanoic acid (”PFOA”)  – in groundwater.

I. State Regulations

The snapshot provided below is current as of March 1, 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 later this year, and more state actions, as well as possible federal action, are expected to be announced this year.  All of which means that if your business is assessing your current risk, or conducting due diligence on a property, and there is the possibility of ongoing or legacy PFAS use or contamination, please feel free to contact us to discuss the most recent regulations in the applicable jurisdiction(s).

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

 

New Jersey

 

14 ppt

 

PFOA (Clean Up)

 

Regulation and Related Information

 

New Hampshire

 

15 ppt

 

PFOS (Clean Up)

 

Regulation and Related Information

 

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

 

Michigan

 

51 ppt

 

PFHxS (Clean Up)

 

Regulation and Related Information

 

Colorado

 

70 ppt

 

Site-specific Standards for PFOA and PFOS (Clean Up)

 

Site-Specific Groundwater Quality Standard

 

Delaware, Montana, and Rhode Island

 

70 ppt

 

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

 

Delaware:  Guidance Policy

 

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

 

Illinois

 

140,000 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 .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 .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

 

 

II. Additional Considerations

Without a federal PFAS standard, the various states have enacted a wide range of regulations, notifications, or advisories.  For example, for PFAS substances in groundwater, the smallest concentration is 2 ppt (Illinois; PFOA only) and the largest value is 560,000 ppt (Illinois; PFHxA only).  For consistency, the following chart illustrates the discrepancies in the concentration levels only for PFOA and/or PFOS.

III. Conclusion

Businesses operating in these 13 states 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, should use 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.