United States: PFAS Update: State-by-State Regulation Of PFAS Substances In Drinking Water

In the absence of an enforceable federal drinking water standard for per- and polyfluoroalkyl substances ("PFAS"), many states have started regulating PFAS compounds in drinking water.  The result is a patchwork of regulations and standards of varying levels, which presents significant operational and compliance challenges to impacted industries.  This client alert surveys the maximum contaminant levels ("MCLs"), as well as guidance and notification levels, for PFAS compounds – typically perfluorooctane sufonic acid ("PFOS") and perflurooctanic acid ("PFOA")  – in drinking water across the United States.

I. Federal Health Recommendations and Advisory

The United States Environmental Protection Agency ("EPA") has issued a Lifetime Drinking Water Health Advisory Level of 70 ppt for PFOS and PFOA.  EPA's Health Advisory is non-enforceable, but is intended to provide technical information to state agencies and other public health officials regarding health effects, analytical methodologies, and treatment technologies associated with drinking water PFAS contamination.  Numerous states have adopted and/or used EPA's recommended 70 ppt PFAS concentration limitation for drinking water (e.g., Alaska, Colorado, Connecticut, Delaware, New Mexico, and Ohio).

According to the PFAS Strategic Roadmap, EPA expects to issue proposed drinking water limits, or MCLs, for PFOA and PFOS in the fall of 2023.  A national drinking water limit will require the entire country to evaluate the concentration of these two compounds in drinking water, and to implement treatment systems and permit limits to achieve the MCLs.

II. State Regulations

Until the federal government enacts MCLs for PFOA and PFOS, the regulatory landscape for PFAS compounds in drinking water consists of an array of widely-varying state-promulgated standards and regulations.  For example, one of the smallest allowable concentrations is 5.1 ppt (California; PFOA only), and one of the largest values is 667,000,000 ppt (Nevada; PFBS only).  For further detail, the chart below illustrates the significance of the discrepancies between the regulatory levels for PFOA and/or PFOS.

The map and chart below are current as of March 1, 2022.  Two states, including Pennsylvania (MCLs for two PFAS substances) and Rhode Island (Interim Drinking Water Standards for six PFAS substances), have proposed, but not yet promulgated, drinking water regulations for PFAS.  Additionally, Delaware, Maine, and Virginia have enacted legislation to establish MCLs for PFAS compounds for drinking water, so implementing regulations in those jurisdictions may be forthcoming.  Moreover, Wisconsin is currently involved in an administrative process to establish drinking water standards.  These proposals underscore that state-driven guidance and requirements surrounding the PFAS drinking water regulations are developing quickly throughout the country.

No regulations:

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

Key:

III. 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 ultimately responsible for meeting the applicable MCLs and 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 the POTW or other drinking water systems to ensure that the effluent the treatment facility receives can be adequately filtered and treated to comply with the MCLs.

Businesses that currently or historically have used PFAS compounds, or have reason to believe that they may be present in their process wastewater effluent, should evaluate the following considerations: 

• Whether their wastewater discharges, following treatment by the POTW or other treatment facilities, are eventually released to sources that are used for drinking water;
• Whether their discharge contains any of the PFAS compounds that are regulated in their jurisdiction; and
• Whether they are likely to be subject to permit conditions limiting the allowable concentration of PFAS compounds in their wastewater discharges. 

Acquiring this information will allow businesses to determine whether they need to modify their operations to reduce or eliminate PFAS from their waste stream to achieve compliance with an existing standard, or in anticipation of likely future permit conditions.

IV. Conclusion

The regulation of PFAS substances in drinking water will continue over the next several years as additional research is conducted on potential health impacts, and as regulators at both the federal and state levels develop a deeper understanding of the prevalence of PFAS compounds in drinking water and the efficacy of different MCLs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.