PFAS Update: October 2022 State-by-State Groundwater Regulations

In the absence of federal cleanup standards for per- and polyfluoroalkyl substances (“PFAS”) in groundwater, many states have themselves begun the process of regulating PFAS in groundwater. As a result, states have adopted a patchwork of regulations and guidance standards that present significant compliance challenges for affected industries. This Customer Alert explores the current landscape of state regulations regarding guidance, notification, and cleanup levels of PFAS—typically perfluorooctane sulfonic acid (“PFOS”) and perfluorooctanoic acid (“PFOA”)—in waters. underground.

I. Federal Health Recommendations and Advisories

Although no legally binding standards for groundwater have been published at the federal level, the United States Environmental Protection Agency (“EPA”) has published an influential document: Interim recommendations for treating groundwater contaminated with PFOA and PFOS. The key details are:

  • Date: Implemented on December 19, 2019.
  • Applicability of the site: All locations that are currently undergoing federal cleanup actions.
  • Recommendations:
    • Apply a screening level of 40 ppt for PFOA and PFOS, individually or combined, to determine if the compounds are present at a site and may warrant further action.
    • Apply the EPA’s 2016 Drinking Water Health Advisory of 70 ppt for PFOA and PFOS, individually or in combination, (“HA”) as a preliminary remediation target for contaminated groundwater that are a current or potential source of drinking water.

Although the HA is not legally enforceable, several states have nevertheless used the 70 ppt recommended by the EPA as a benchmark for establishing groundwater limits.

II. State regulations

The snapshot provided below is current to October 20, 2022 but it is important to note that this is a rapidly evolving regulatory space. Some states, like Illinois, North Carolinaand Rhode Islandhave proposed new or revised groundwater regulations for various PFAS substances that may come into force soon.

Companies should determine if they currently use or release PFAS compounds and, if so, assess whether national regulations apply, particularly if they operate in one of the jurisdictions listed below. In addition, owners of properties using legacy PFAS and potential purchasers of commercial and industrial properties should review the latest groundwater quality standards as part of the due diligence process.

States

Concentration level

Settlement type

Information

Iowa

0.004 ppt for protected groundwater sources (listed by the Iowa Department of Natural Resources at 0.000000004 mg/L)

PFOA (Advice)

National standards

Iowa

0.02 ppt for protected groundwater sources (listed by the Iowa Department of Natural Resources as 0.00000002 mg/L)

PFOS (council)

National standards

Illinois

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

PFOA (orientation)

Regulation and Related Information

New Jersey

2 ppt (indicated by regulation as 0.002 µg/L)

Chloroperfluoropolyether carbonates (Clean Up)

Regulation and Related Information

Michigan

6 points

PFNA (cleaning)

Regulation and Related Information

Michigan

8 points

PFOA (cleaning)

Regulation and Related Information

Washington

9 ppt (declared by the Washington Department of Ecology as 9 ng/L)

PFNA (Orientation)

Related Information

Washington

10 ppt (declared by the Washington Department of Ecology as 10 ng/L)

PFOA (orientation)

Related Information

New Hampshire

11 dots

PFNA (cleaning)

Regulation and Related Information

New Hampshire

12 dots

PFOA (cleaning)

Regulation and Related Information

New Jersey

13 dots

PFNA and PFOS (cleaning)

Regulation and Related Information

Illinois

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

PFOS (orientation)

Regulation and Related Information

New Jersey

14 dots

PFOA (cleaning)

Regulation and Related Information

New Hampshire

15 dots

PFOS (cleaning)

Regulation and Related Information

Washington

15 ppt (declared by the Washington Department of Ecology as 15 ng/L)

PFOS (orientation)

Related Information

Minnesota

15 ppt (reported by the Minnesota Department of Health as 0.015 ppb)

PFOS (orientation)

Health board level

Michigan

16 dots

PFOS (cleaning)

Regulation and Related Information

New Hampshire

18 dots

PFHxS (cleaning)

Regulation and Related Information

Massachusetts

20 ppt (listed in the regulations as 0.02 ppb)

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

Regulation and Related Information

Vermont

20 ppt (listed in the regulations as 0.02 µg/L)

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

Regulation and Related Information

Illinois

21 ppt (reported by the Illinois Pollution Control Agency as 21 ng/L)

PFNA (Orientation)

Regulation and Related Information

Iowa

21 ppt for protected groundwater sources (listed by the Iowa Department of Natural Resources as 0.000021 mg/L)

PFNA Notice)

National standards

Washington

24 ppt (declared by the Washington Department of Ecology as 24 ng/L)

HFPO-DA or GenX (orientation)

Related Information

Minnesota

35 dots

PFOA (Advice)

Health board level (see page 181)

Hawaii

40 points, etc

PFOA and PFOS; 16 other PFAS substances (advisory)

Environmental Response Levels (see page 44)

Minnesota

47 dots

PFHxS (Council)

Health board level (see page 180)

Michigan

51 dots

PFHxS (cleaning)

Regulation and Related Information

Washington

65 ppt (declared by the Washington Department of Ecology as 65 ng/L)

PFHxS (Guide)

Related Information

Colorado

70 dots

Site Specific Standard for PFOA and PFOS (Cleanup)

Site-specific groundwater quality standard

Florida, Maine, Montana, Pennsylvania and Rhode Island

70 dots

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

Note: Maine has residential and building standards

Florida: Orientation plan

Maine: Maximum exposure guideline (see pages 36 and 60)

Note: Maine contains PFOS + PFOA + PFHpA + PFNA + PFHxS 70 dots

Montana: Numerical water quality standard

Pennsylvania: Medium Specific Concentration Cleaning Standards

Rhode Island: Notification standard

Illinois

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

PFHxS (Guide)

Regulation and Related Information

Iowa

140 ppt for protected groundwater sources (quoted by the Iowa Department of Natural Resources at 0.00014 mg/L)

PFHxS (Council)

National standards

Texas

290 points, etc

16 different PFAS substances (cleaning)

Protective concentration levels (see March 2022 Level 1 PCL chart)

Washington

345 ppt (declared by the Washington Department of Ecology as 345 ng/L)

PFBS (orientation)

Related Information

Michigan

370 dots

HFPO-DA (cleaning)

Regulation and Related Information

Alaska

400 ppt (listed in the regulations as 0.4 µg/L)

PFOA and PFOS separately (cleaning)

Rules (18 AAC 25) and Related Information

Michigan

420 dots

PFBS (cleaning)

Regulation and Related Information

Nevada

667 ppt (listed in the regulations as 0.667 µg/L)

PFOS and PFOA (guidelines)

Basic comparison levels

North Carolina

2,000 points

PFOA (orientation)

Regulation and Related Information

Minnesota

2,000 points

PFBS (Council)

Health board level (see page 180)

Iowa

2,000 ppt for protected groundwater sources (listed by the Iowa Department of Natural Resources as 0.02 mg/L)

PFBS (Council)

National standards

Illinois

2100 ppt (reported by the Illinois Pollution Control Agency as 2100 ng/L)

PFBS (orientation)

Regulation and Related Information

Minnesota

7,000 stitches

PFBA (Council)

Health board level (see page 180)

Pennsylvania

10,000 ppt (indicated in the regulations as 10 µg/L)

PFBS residential property (cleaning)

Medium-specific concentration standards and Related Information

Pennsylvania

29,000 ppt (listed in the regulations as 29 µg/L)

PFBS non-residential property (cleaning)

Medium-specific concentration standards and Related Information

Michigan

400,000 ppt

PFHxA (cleaning)

Regulation and Related Information

Maine

400,000 ppt (listed in the regulations as 400 ppb)

PFBS (orientation)

Note: Maine has residential and building standards

Maximum exposure guideline (see page 60)

Indiana

400,000 ppt (indicated in the regulations as 400 µg/L)

PFBS (orientation)

Screening levels

Illinois

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

PFHxA (Guide)

Regulation and Related Information

Nevada

667,000 ppt (listed in the regulations as 667 µg/L)

PFBS (orientation)

Basic comparison levels

No PFAS groundwater regulations (as of publication date):

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

Key:

Notification

A company representative should notify the appropriate government official that the ground water is above the stated limit.

Tips

These levels are not binding limits, but they can serve as a basis for regulatory action and are a useful tool for due diligence and risk assessment.

To clean

Investigation and corrective action is generally required when concentration levels exceed the cleanup threshold. This is usually expressed by groundwater quality standards which identify specific cleanup criteria.

III. Further information

Without federal PFAS standards for groundwater, states have adopted a wide range of regulatory concentration levels. For example, for PFAS substances in groundwater, the most stringent concentration is 0.004 ppt (Iowa; PFOA only) and the most lenient concentration is 667,000 ppt (Nevada; PFBS only). The following table illustrates the differences in concentration levels only for PFOA and/or PFOS.

IV. Conclusion

Companies operating in the 20 states where groundwater regulations have already been enacted should determine if they currently use or discharge any of the regulated PFAS compounds. In addition, owners of properties using legacy PFASs and potential purchasers of commercial and industrial properties in these jurisdictions will increasingly need to incorporate groundwater quality standards as part of their due diligence processes.

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