In the absence of an enforceable federal per- and polyfluoroalkyl substances (“PFAS”) drinking water standard, many states have embarked on the process of regulating PFAS compounds in drinking water. The result is a patchwork of regulations and standards of varying stringency 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 that have been enacted or proposed at the state level.
1. 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 and non-regulatory, but is intended to provide technical information to state agencies and other public health officials on health effects, analytical methodologies, and treatment technologies associated with drinking water PFAS contamination. Several states have adopted the EPA’s recommended 70 ppt PFAS concentration limitation for drinking water.
2. State Regulations
President Biden’s Environmental Justice Plan includes a commitment to set “enforceable limits for PFAS in the Safe Drinking Water Act,” presumably for PFOA and PFOS, so the entire country may soon be subject to enforceable MCLs for at least those two PFAS compounds. However, until such federal action occurs (and potentially afterwards to the extent that states continue to enact more stringent standards), the regulatory landscape for PFAS compounds in drinking water will consist of an array of widely-varying state-promulgated 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 chart below illustrates the significance of the discrepancies between the regulatory levels for PFOA and/or PFOS.
JD Supra, 10 June 2021