Many states have expressed frustration with the lack of federal cleanup standards for per- and polyfluoroalkyl substances (“PFAS”) in groundwater, and have started the process of regulating PFAS in groundwater themselves.  As a result, states have adopted a patchwork of regulations and guidance standards that present significant challenges to impacted industries.  This client alert focuses on the different state regulations regarding the guidance, notification, and cleanup levels for PFAS – typically perfluorooctanesulfonic acid (“PFOS”) and perfluorooctanoic acid (”PFOA”)  – in groundwater.

I. State Regulations

The snapshot provided below is current as of February 24, 2021, but it is important to note that this is a rapidly developing regulatory space.  Some states, such as North Carolina, Pennsylvania, Rhode Island, and Wisconsin have proposed groundwater regulations for PFAS which may take effect later this year, and more state actions, as well as possible federal action, are expected to be announced this year.  All of which means that if your business is assessing your current risk, or conducting due diligence on a property, and there is the possibility of ongoing or legacy PFAS use or contamination, please feel free to contact us to discuss the most recent regulations in the applicable jurisdiction(s).

No regulations:

Alabama, Arizona, Arkansas, California, Connecticut, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Ohio, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming

II. Additional Considerations

Without a federal PFAS standard, the various states have enacted a wide range of regulations, notifications, or advisories.  For example, for PFAS substances in groundwater, the smallest concentration is 6 ppt (Michigan; PFNA only) and the largest value is 560,000,000 ppt (Illinois; PFHxA only).  For consistency, the following chart illustrates the discrepancies in the concentration levels only for PFOA and/or PFOS.

III. Conclusion

Businesses operating in these 13 states should consider whether they currently use or discharge any of the regulated PFAS compounds.  In addition, owners of property with legacy PFAS use, and prospective purchasers of commercial and industrial properties, should use the groundwater quality standards as part of their due diligence processes.

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