Federal and State Evolving PFAS Regulations and Standards
Kelley Drye Client Advisory
May 4, 2020
Per- and polyfluoroalkyl substances (PFAS) are a group of man-made chemicals that contain nearly 5,000 different compounds.[1]  PFAS are ubiquitous and can be found in a variety of everyday products, including stain- and water-resistant fabrics and carpeting, cleaning products, cookware, paints, and fire-fighting foams.[2]  The Environmental Protection Agency (EPA) warns that exposure to at least some PFAS “can lead to adverse health outcomes in humans.”[3]
 

Federal PFAS Actions

While PFAS remain largely unregulated at the federal level, the federal government has taken steps to develop guidelines to protect human health from PFAS contamination.  In 2009, the EPA issued provisional health advisories for two PFAS: perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS).[4]  Provisional health advisories “are developed to provide information in response to an urgent or rapidly developing situation” and “reflect reasonable, health-based hazard concentrations above which action should be taken to reduce exposure to unregulated contaminants in drinking water.”[5] The nonbinding advisories set the limit for PFOA at 400 parts per trillion (ppt) and PFOS at 200 ppt.[6]  

From 2013 to 2015, the EPA conducted, pursuant to its Third Unregulated Contaminant Monitoring Rule (UCMR3), large-scale sampling of six PFAS compounds: PFOA, PFOS, perfluorononanoic acid (PFNA), perfluorohexanesulfonic acid (PFHxS), perfluoroheptanoic acid (PFHpA), and perfluorobutanesulfonic acid (PFBS).[7] This sampling and monitoring was intended to be the “basis for future regulatory actions to protect public health.”[8] Based on the 2009 provisional health advisories, the level of contamination appeared low.[9] That quickly changed, however, when the EPA revised its drinking-water advisories.[10]

In 2016, EPA revised its exposure guidelines for PFOA and PFOS by issuing new drinking-water health advisories to 70 ppt, for either chemical individually or combined.[11] This remains the nonbinding standard for PFAS at the federal government level.  Health advisories “provide information on contaminants that can cause human health effects and are known or anticipated to occur in drinking water.”[12] At 70 ppt, individually and combined, the EPA explained, the advisories “offers a margin of protection for all Americans throughout their life from adverse health effects resulting from exposure to PFOA and PFOS in drinking water.”[13] Drinking water in 21 states, two US territories, and one tribal community tested above the 70 ppt limit.[14]

In June 2018, the Agency for Toxic Substances and Disease Registry (ATSDR) of the Department of Health and Human Services released a draft Toxicological Profile for Perfluoroalkyls.[15]  The ATSDR set minimal risk level in drinking water for four PFAS: (1) PFOA at 78 ppt (adult) and 21 ppt (child); (2) PFOS at 52 ppt (adult) and 14 ppt (child); (3) PFHxS at 517 ppt (adult) and 140 ppt (child); and (4) PFNA at 78 ppt (adult) and 21 ppt (child).[16] Exposure below these levels, the ATSDR explained, “is not expected to result in adverse health effects.”[17] Like the EPA health advisories, these risk levels are nonbinding.

In February of 2019, the EPA issued its PFAS Action Plan.[18]  This plan calls for short and long-term actions. A few important actions include:
 
  • Initiating steps to evaluate the need for a maximum contaminant level for PFOA and PFOS;

  • Beginning the necessary steps to propose designating PFOA and PFOS as hazardous substances;

  • Developing groundwater cleanup recommendations for PFOA and PFOS;

  • Promulgating significant new use rules (“SNUR”) that require EPA notification before chemicals are used in new ways that may create human health and ecological concerns;[19] and

  • Using enforcement actions to help manage PFAS risk.[20]


On December 4, 2019, EPA published an Advanced Notice of Proposed Rulemaking requesting comments on whether EPA should list 600 PFAS currently active in U.S. commerce, or any other PFAS, on the Toxics Release Inventory (“TRI”) required under the Emergency Planning and Community Right-to-Know Act (“EPCRA”).[21]  A few days later, on December 20, 2019, Congress stepped in and amended EPCRA to add certain individual PFAS chemicals to the TRI program.[22]  These include the PFAS commonly known as PFOA, PFOS, GenX, PFNA, and PFHxS.[23]

On December 19, 2019, the EPA issued its Interim Recommendations to Address Groundwater Contaminated with PFOA and PFOS.[24]  This nonbinding guidance provides screening levels and preliminary goals that allow the EPA to develop final cleanup levels for PFOA and/or PFOS contamination of groundwater that feeds into drinking-water supplies nationwide.[25] The guidance recognizes that cleanup actions under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Resource Conservation and Recovery Act (RCRA) may ultimately result from the information collected and the final cleanup levels once they are set.[26] The guidance recommends the following actions:
 
  • Screening sites using a recommended groundwater screening level based on a target Hazard Quotient of .1 for PFOA and/or PFOS individually, which is currently 40 ppt;

  • Using the 2016 EPA health advisories for PFOA and PFOS of 70 ppt, individually or combined, as the preliminary remediation goal for groundwater that is a current or potential source of drinking water, where no state or tribal maximum contaminant level or other applicable or relevant and appropriate requirements are available or sufficiently protective; and

  • Expecting that, in situations where the groundwater is being used for drinking water, responsible parties will address levels of PFOA and/or PFOS over 70 ppt.[27]


On February 26, 2020, the EPA published an update to its PFAS Action Plan.[28] The EPA highlighted several actions it has taken since first publishing the Plan:
 
  • Issuing preliminary determinations to regulate PFOA and PFOS in drinking water;[29]

  • Issuing a supplemental proposal to ensure that new uses of certain persistent long-chain PFAS chemicals in surface coatings cannot be manufactured or imported into the US without notification and review under TSCA;

  • Publishing a new validated method to accurately test for 11 additional PFAS in drinking water, bringing the total to 29 PFAS;

  • Issued Interim Recommendations for Addressing Groundwater Contaminated with PFOA and PFOS;

  • Announcing funding for new research on managing PFAS in agriculture; and

  • Issuing an advanced notice of rulemaking that would allow the public to provide input on adding PFAS to the Toxics Release Inventory toxic chemical list.[30]


More recently, on March 10, 2020, the EPA published a notice in the Federal Register of its Preliminary Regulatory Determinations for Contaminants on the Fourth Drinking Water Contaminant Candidate List, which announced its preliminary determination to regulate PFOA and PFOS under the Safe Drinking Water Act.[31] The notice is “beginning of the [EPA’s] regulatory development process, not the end.”[32] As relevant here, the EPA seeks comments on:
 
  • Its preliminary determination to regulate PFOA and PFOS;

  • The other PFAS substances and potential regulatory approaches; and

  • The processes and analyses used for the regulatory determinations, supporting information, additional studies or sources of information it should consider, and the rationale it used to make these preliminary decisions.[33]


The comment period ends on May 11, 2020.[34]  Despite recent developments, federal action on PFAS has been slow to develop and no binding maximum contamination level has been set.
 

State PFAS Actions

Over the past several years, many states have implemented their own PFAS rules and regulations or announced their intention to do so.  These actions address PFAS in drinking water, groundwater, and soil.  Below is a list of the states that have taken action on PFAS contamination to date.
 

State

Action

Compound levels

California

Drinking Water Notification Level[35]

 

  • PFOA (5.1 ppt)

  • PFOS (6.5 ppt)

 

Drinking Water Response Levels[36]

 

  • PFOA (10 ppt)

  • PFOS (40 ppt)

 

Connecticut

Drinking Water Standard[37]

 
70 ppt (individually and combined):

  • PFOA

  • PFOS

  • PFNA

  • PFHxS

  • PFHpA

 

Maine

Soil Standards[38]

 
Leaching to Groundwater Guidelines

  • PFOA (.0095 mg/kg)

  • PFOS (.021 mg/kg)

  • PFBS (7.1 mg/kg)

 

Groundwater Standard[39]

 
Residential Guidelines

  • PFOA (.4 ppb)

  • PFOS (.4 ppb)

  • PFBS (400 ppb)

 

Drinking Water Standard
(Recommended)[40]

 
70 ppt (individually and combined):

  • PFOA

  • PFOS

 

Massachusetts

Drinking Water Standard (Proposed)[41]

 
20 ppt (individually & combined):

  • PFOA

  • PFOS

  • PFNA

  • PFHxS

  • PFHpA 

  • PFDA

 

Michigan

Drinking Water Standard (Proposed)[42]

 

  • PFOA (8 ppt)

  • PFOS (16 ppt)

  • PFNA (6 ppt)

  • PFHxA (400,000 ppt)

  • PFHxS (51 ppt)

  • PFBS (420 ppt)

  • GenX (370 ppt)

 

Minnesota

Drinking Water Standard[43]

 

  • PFOA (35 ppt)

  • PFOS (15 ppt)

  • PFHxS (47 ppt)

  • PFBS (2 ppb)

  • PFBA (7 ppb)

New Hampshire

Drinking Water Standards (rule under injunction)[44]

 

  • PFOA (12 ppt)

  • PFOS (15 ppt)

  • PFHxS (18 ppt)

  • PFNA (11 ppt)

Groundwater Standards[45]

 
70 ppt (individually and combined):

  • PFOA

  • PFOS

 

New Jersey

 
Drinking Water Standard (Adopted[46] & Proposed[47])
 

 

 
Adopted

  • PFNA (13 ppt)

Proposed

  • PFOA (14 ppt)

  • PFOS (13 ppt)

New York

Drinking Water Standards
(Proposed) [48]

 

  • PFOA (10 ppt)

  • PFOS (10 ppt)

 

Hazard Substance Identification[49]

 

  • PFOA

  • PFOS

 

North Carolina

Drinking Water Standard[50]

 

  • GenX (140 ppt)

 

Groundwater Standard
(Recommended)[51]

 
70 ppt (individually and combined):

  • PFOA

  • PFOS

 

Ohio

Drinking Water Standard
(Proposed)[52]

 
70 ppt (individually and combined):

  • PFOA

  • PFOS

 
Other PFAS

  • GenX (700 ppt)

  • PFBS (140,000 ppt)

  • PFHxS (140 ppt)

  • PFNA (21 ppt)

 

Texas

Groundwater Clean-Up Standard[53]

 

  • PFOA (290 ppt)

  • PFOS (560 ppt)

  • PFBS (34,000 ppt)

  • PFHxS (93 ppt)

  • PFHxA (93 ppt)

  • PFHpA (560 ppt)

  • PFNA (290 ppt)

  • PFDA (370 ppt)

  • PFBA (71,000 ppt)

  • PFPtA (290 ppt)

  • PFOSA (93 ppt)

  • PFDoA (93 ppt)

  • PFTA (93 ppt)

  • PFTrDA (93 ppt)

  • PFUnA (93 ppt)

  • PFDS (93 ppt)

 

Vermont

Drinking Water Standard[54]

 
20 ppt (individually or combined):

  • PFOA

  • PFOS

  • PFHxS

  • PFHpA

  • PFNA

 

Washington

Drinking Water Standards
(Proposed) [55]

 

  • PFOA (10 ppt)

  • PFOS (15 ppt)

  • PFNA (14 ppt)

  • PFHxS (70 ppt)

  • PFBS (1,300 ppt)

 

Wisconsin

Groundwater Standards
(Proposed) [56]

 
Enforcement Standard: 20 ppt (individually and combined)

  • PFOA

  • PFOS

Preventive Action Limit: 2 ppt (individually and combined)

  • PFOA

  • PFOS

 

States following the EPA’s 2016 PFOA and PFOS 70 ppt, individually and combined, advisory: Alaska[57] and Montana[58]



As additional studies and data have become available, the established regulatory standards and acceptable levels of PFAS contamination are becoming more protective.  As the chart below demonstrates, in a few years, acceptable levels have dropped substantially, in some cases by orders of magnitude.  The recent trend in the States is to set PFAS limits between 10 to 20 ppt.

Chart_PFAS-(1).jpg
 


Conclusion

While the regulation of PFAS in drinking water and the environment is developing on a state-by-state basis at the moment, the obvious trend is toward more protective standards as regulators learn more about the many risks that PFAS pose to human health and the environment.  These standards impose liability and exposure of significant costs upon those that used products containing these chemicals, even unwittingly.

***

Bill Jackson, Fabio Dworschak and Melissa Byroade are with Kelley Drye & Warren LLP.  Kelley Drye is a national leader in PFAS litigation matters, representing many states, water districts, and private parties asserting claims against the manufacturers of PFAS and Aqueous Fire-Fighting Foam in over 20 separate litigation matters proceeding in over a dozen states. 
 

[1] FDA, Per- and polyfluoroalkyl substances (PFAS), https://www.fda.gov/food/chemicals/and-polyfluoroalkyl-substances-pfas (last visited 4/8/2020).

[2] Id.

[3] EPA, Basic Information on PFAS, https://www.epa.gov/pfas/basic-information-pfas (last visited 4/8/2020).

[4] EPA, Provisional Health Advisories for Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS), https://www.epa.gov/sites/production/files/2015-09/documents/pfoa-pfos-provisional.pdf (last visited 4/5/2020).

[5]  Id.

[6] Id.

[7] EPA, Third Unregulated Contaminant Monitoring Rule, https://www.epa.gov/dwucmr/third-unregulated-contaminant-monitoring-rule (last visited 4/8/2020)

[8]  Id.

[9] Association of State Drinking Water Administrators, Per- and polyfluoroalkyl substances (PFAS), https://www.asdwa.org/pfas/ (last visited 4/8/2020)

[10] Id.

[11] EPA, Drinking Water Health Advisory for Perfluorooctanoic acid (“PFOA”) and Perfluorooctane sulfonate (“PFOS”), https://www.epa.gov/sites/production/files/2016-05/documents/pfoa_health_advisory_final_508.pdf, https://www.epa.gov/sites/production/files/2016-05/documents/pfos_health_advisory_final_508.pdf (last visited 4/5/2020).

[12] EPA, Fact Sheet: PFOA & PFOS Drinking Water Health Advisories, https://www.epa.gov/sites/production/files/2016-06/documents/drinkingwaterhealthadvisories_pfoa_pfos_updated_5.31.16.pdf (last visited 4/8/2020).

[13]  Id.

[14] Congressional Research Service, PFAS and Drinking Water: Selected EPA and Congressional Actions, (R4793; Aug. 20, 2019), https://fas.org/sgp/crs/misc/R45793.pdf

[15] ATSDR, Toxicological Profile for Perfluoroalkyls (June 2018), https://www.atsdr.cdc.gov/toxprofiles/tp200.pdf (last visited 4/21/20).

[16] ATSDR, ATSDR’s Minimal Risk Levels (MRLs) and Environmental Media Evaluation Guides (EMEGs) for Perfluoroalkyls (PFAS) (Nov. 2018), https://www.atsdr.cdc.gov/pfas/docs/PFAS_MRL_HA-H.pdf (last visited 4/21/20)

[17] Id.

[18]  EPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plain, https://www.epa.gov/sites/production/files/2019-02/documents/pfas_action_plan_021319_508compliant_1.pdf (last visited 4/8/2020).

[19]   In 2002, 2007 and 2013, EPA issued SNURs on various PFAS compounds under Section 5 of the federal Toxic Substances Control Act. EPA, Risk Management for Per- and Polyfluoroalkyl Substances (PFAS) under TSCA, https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-management-and-polyfluoroalkyl-substances-pfas (last visited 4/20/20).

[20]  Id. at 2.

[21] 84 Fed. Reg. 66,369 (Dec. 4, 2019).

[22] Nessa Coppinger et al., Congress Tackles PFAS on Multiple Fronts, JDSupra (Jan. 31, 2020), https://www.jdsupra.com/legalnews/congress-tackles-pfas-on-multiple-fronts-32618/ (last visited April 20, 2020).

[23] Id.

[24] EPA’s Interim Recommendations for Addressing Groundwater Contaminated with PFOA and PFOS, https://www.epa.gov/sites/production/files/2019-12/documents/epas_interim_recomendations_for_addressing_groundwater_contaminated_with_pfoa_and_pfos_dec_2019.pdf (last visited 4/6/2020).

[25]  Id. at 2.

[26]  Id.

[27]  Id.

[28] EPA, EPA PFAS Action Plan: Program Update (Feb. 2020), https://www.epa.gov/sites/production/files/2020-01/documents/pfas_action_plan_feb2020.pdf (last visited 4/6/2020); Press Release, EPA Releases PFAS Action Plan: Program Update (Feb. 26, 2020), https://www.epa.gov/newsreleases/epa-releases-pfas-action-plan-program-update-0 (last visited 4/8/2020)

[29] This update references a February 20th announcement by the EPA of its preliminary determination to regulate PFOS and PFOA, which was published on the Federal Register on March 10th.

[30] Press Release, EPA Releases PFAS Action Plan: Program Update (Feb. 26, 2020), https://www.epa.gov/newsreleases/epa-releases-pfas-action-plan-program-update-0 (last visited 4/8/2020).

[31] 85 Fed. Reg. 14,098 (March 10, 2020).

[32] Id. at 14,100.

[33]  Id.

[34]  Id.  

[35] California Water Boards Division of Drinking Water, https://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/PFOA_PFOS.html (last visited 12/27/2019); Response levels: California Sets Stricter Oversight of Two “Forever Chemicals”, Law360, https://www.law360.com/energy/articles/1241772/calif-sets-stricter-oversight-of-two-forever-chemicals- (last visited 2/7/2020).

[36]  Id.

[37]  Connecticut Department of Public Health, Perfluoroalkyl Substances (PFAS) in Drinking Water: Health Concerns, https://portal.ct.gov/-/media/Departments-and Agencies/DPH/dph/environmental_health/eoha/Toxicology_Risk_Assessment/2018-uploads/Perfluoroalkyl-Substances-PFASs-in-DWHealth-Concerns.pdf?la=en (last visited 12/27/2019).

[38] Maine Bureau of Remediation & Waste Management, Maine Remedial Action Guidelines (RAGs) for Sites Contaminated with Hazardous Substances (Oct. 19, 2018), https://www.maine.gov/dep/spills/publications/guidance/rags/ME-Remedial-Action-Guidelines-10-19-18cc.pdf (last visited 4/9/2020).

[39] Id.

[40] Id.

[41] Massachusetts Department of Environmental Protection, Development of a PFAS Drinking Water Standard (MCL), https://www.mass.gov/lists/development-of-a-pfas-drinking-water-standard-mcl (last visited 4/9/2020).

[42] Press Release, Michigan Moves Forward on Drinking Water Standards for PFAS, Michigan Department of Environment, Great Lakes, and Energy Press Release (10/11/2019), https://www.michigan.gov/som/0,4669,7-192-47796-509830--,00.html (last visited 4/9/2020).

[43] Minnesota Department of Health website, https://www.health.state.mn.us/communities/environment/risk/guidance/gw/table.html (last visited 12/27/19).

[44]  This rule is currently under an injunction, but the NH Senate has proposed a PFAS bill to set levels at the rule’s standards. See Senate Bill SB287, https://gencourt.state.nh.us/bill_Status/billtext.aspx?sy=2020&txtFormat=amend&id=2020-0079S (last visited 4/6/2020).

[45] Id.

[46] N.J.A.C. 7:10-5.2(a)(5), https://www.nj.gov/dep/rules/rules/njac7_10.pdf.

[47] Affirming National Leadership Role, New Jersey Proposes Stringent Drinking Water Standards for PFOA and PFOS, N.J. Department of Environment Protection News Release (April 1, 2019), https://www.nj.gov/dep/newsrel/2019/19_0021.htm (last visited 4/9/2020); see  Legislative bill (No. 2523, 219th legislature).  

[48] New York Proposes New Drinking Water Standards, NRDC (7/8/19), https://www.nrdc.org/media/2019/190709 (last visited 4/7/20).

[49] 6 NYCRR Part 597(1), https://www.dec.ny.gov/regulations/104968.html (last visited 4/7/2020).

[50] North Carolina Department of Environmental Quality, GenX Factsheet, https://files.nc.gov/ncdeq/GenX/GenX%20factsheet%20FINAL%2013Sep2017.pdf (last visited 12/27/19).

[51]  Id.

[52] Ohio Environmental Protection Agency, Ohio Per- and Polyfluoroalkyl Substances (PFAS) Action Plan for Drinking Water, https://epa.ohio.gov/Portals/28/documents/pfas/PFASActionPlan.pdf (last visited 4/7/2020).

[53] Per- and Polyfluoroalkyl Substances (PFAS) Summary of State Regulation to Protect Drinking water, https://www.awwa.org/Portals/0/AWWA/Government/SummaryofStateRegulationtoProtectDrinkingWater.pdf (last visited 4/7/2020).

[54] Vermont Environmental Health Division, Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) in Drinking Water, https://www.healthvermont.gov/environment/drinking-water/perfluoroalkyl-and-polyfluoroalkyl-substances-pfas-drinking-water (last visited 4/9/2020).

[55] Washington Department of Health, Draft Recommended State Action Levels for Per- and Polyfluoroalkyl Substances (PFAS) in Drinking Water: Approach, Methods, and Supporting Information (Nov. 2019), https://www.doh.wa.gov/Portals/1/Documents/4200/PFASToxicologicalAssessment.pdf (last visited 4/9/2020).

[56] Wisconsin Department of Health, Recommended Groundwater Enforcement Standards, https://www.dhs.wisconsin.gov/water/gws.htm (last visited 4/7/2020).

[57]  Alaska Department of Environmental Conservation, Technical Memorandum (Oct. 2, 2019), file:///C:/Temp/Downloads/pfas-drinking-water-action-levels-technical-memorandum-10-2-19.pdf (last visited 4/9/2020).

[58] Montana Department of Environmental Quality, Circular DEQ-7: Montana Numeric Water Quality Standards (June 2019), https://deq.mt.gov/Portals/112/Water/WQPB/Standards/PDF/DEQ7/DEQ-7.pdf (last visited 4/9/2020).