State-by-State Regulation of PFAS Substances in Drinking Water | Bryan Cave Leighton Paisner

Summary

In the absence of an enforceable federal drinking water standard for per- and polyfluoroalkyl substances (“PFAS”), many states have begun regulating PFAS compounds in drinking water. The result is a patchwork of regulations and standards of varying severity, which poses significant operational and compliance challenges for the industries concerned. This Customer Alert examines the Maximum Pollutant Levels (“MCLs”) as well as guidelines and notification levels for PFAS compounds – typically perfluorooctane sulfonic acid (“PFOS”) and perfluorooctanoic acid (“PFOA”) – in drinking water that have been decided or proposed at the state level.

1. Federal Health Recommendations and Advice

The United States Environmental Protection Agency (“EPA”) has issued a lifetime drinking water health recommendation of 70 ppt for PFOS and PFOA. EPA health advice is unenforceable and non-regulatory, but is designed to provide technical information to government agencies and other public health officials about health effects, analytical methods, and treatment technologies associated with PFAS contamination of drinking water. Several states have adopted the EPA’s recommended PFAS concentration limit of 70 ppt for drinking water.

2. Government regulations

President Biden’s environmental justice plan includes an obligation to set “enforceable limits for PFAS in the Safe Drinking Water Act,” presumably for PFOA and PFOS, so that the entire country could soon be subject to enforceable MCLs for at least these two PFAS compounds. Until such state action is taken (and possibly thereafter if states continue to enact stricter standards), the regulatory landscape for PFAS compounds in drinking water will consist of a number of different state standards and regulations. For example, one of the smallest allowable concentrations is currently 5.1 ppt (California; PFOA only) and one of the largest values ​​is currently 400,000 ppt (Michigan; PFHxA only). The following graphic illustrates the importance of the discrepancies between the levels of regulation for PFOA and / or PFOS.

The map and chart are current as of June 8, 2021. Several states, including Rhode Island and Washington, have proposed drinking water ordinances for PFAS, and Virginia has approved a committee to recommend MCLs for PFAS compounds in drinking water that jurisdictions may be in the pipeline. These suggestions underline that the guidelines and requirements relating to the PFAS Drinking Water Ordinance are developing rapidly.

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:

3. How do these restrictions affect businesses?

MCLs determine the maximum concentration of a certain pollutant that can be present in drinking water. Public sewage treatment plants (“POTWs”) and drinking water systems are ultimately responsible for compliance with the applicable MCLs and must ensure that the drinking water released to the public complies with these limit values. To achieve this, POTWs and government agencies often include discharge limits in the permits of upstream dischargers into the POTW or other drinking water system to ensure that the wastewater received by the WWTP can be appropriately filtered and treated according to the MCLs.

Companies that have currently or in the past used PFAS compounds, or have reason to believe that their process wastewater may contain them, should assess: (1) whether their wastewater discharges will eventually end up after being treated by the POTW or other treatment facility be released to sources used for drinking water; (2) whether their derivative contains any of the PFAS compounds regulated in their jurisdiction; and (3) whether they are likely to be subject to a permit requirement that limits the allowable concentration of PFAS compounds in their sewage discharges. With this information, companies can determine if they need to change their operations to reduce or eliminate PFAS from their waste stream, to meet an existing standard, or in anticipation of likely future permit requirements.

4. Conclusion

Regulation of PFAS chemicals in drinking water is expected to increase over the next few years as additional research is conducted on potential health effects and as federal and state regulators develop a deeper understanding of the prevalence of PFAS chemicals in drinking water the effectiveness of various MCLs.

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