Once the U.S. EPA’s final NPDWR (National Primary Drinking Water Regulations) for PFAS are published, state limits will need to be equal to or below those set by the EPA. As we wait for the EPA to publish its final rule, we thought it might be interesting to do a level-set on where drinking water limits stand at the state level.
A Quick Backgrounder on Drinking Water Limits
As a refresher, the EPA’s NPDWR rule proposes an individual Maximum Contaminant Level (MCL) of 4.0 ppt (parts per trillion) for PFOA and PFOS. In addition, the EPA has proposed a combined limit on four PFAS (PFNA, PFHxS, PFBA, and HFPO-DA/GenX) using a Hazard Index calculation. The draft rule also establishes a non-enforceable Maximum Contaminant Goal (MCG) of zero ppt for PFOA and PFOS.
As of January 2024, the proposal is in the hands of the OMB (Office of Management and Budget) for review. Statutorily, the agency has until September 2024 to publish the rule but has said it expects to do so in early 2024.
Meanwhile, many states that have promulgated drinking water MCLs have already lowered their limits from the outdated Health Advisory Level of 70 ppt (parts per trillion) of PFOA and PFOS, individually or combined, to significantly lower limits. However, a quick review of state limits using the ITRC’s PFAS water and soil values table (December 2023) shows that only Illinois, at 2 ppt for PFOA, has a standard equal to or lower than the EPA’s proposed rule. In addition, the Illinois standard is considered a health-based guidance level, not an enforceable MCL, and only applies to PFOA.
Enacted & Proposed Drinking Water Legislation
First, this review does not cover laws that were passed prior to the NPDWR proposal, i.e., those that are already reflected in enforceable MCLs or state guidelines. Second, even at the state level, passing such legislation can take months if not years. In addition, as watchers of the state legislative process know, what gets proposed can be quite different from what gets passed. We’ve included the bill numbers with links to help our readers track these bills and the details.
Virgina: HB 919 was signed into law in April of 2022, directing the Virginia Board of Health to adopt regulations establishing MCLs in all water supplies and waterworks in the Commonwealth for PFOA and PFOS and for “other perfluoroalkyl and polyfluoroalkyl substances as the Board deems necessary.” The law does not set a deadline for the establishment of these limits.
Vermont: H 421 would set an MCL of zero ppt for PFOA, PFOS, PFHxS, PFNA, PFHA, and PFDA. The bill also requires the Vermont Department of Environmental Conservation to amend the state’s Water Supply Rule to establish an MCL of no greater than 20 ppt for any testable PFAS other than those with a required MCL of zero pt.
South Carolina: H 3499 would require the South Carolina Department of Health and Environmental Control to define MCLs for certain pollutants in public water systems. The bill only specifies PFOA and PFOS and does not direct the department as to what those limits should be.
North Carolina: H 864 is as much about who pays when PFAS in public drinking water systems exceed permissible levels as it is about the levels themselves. Nevertheless, the bill does include specific limits. For an individual PFAS, the limit is the lesser of 10 ppt or any MCL set by the EPA for that specific compound. Combined PFAS levels cannot exceed 70 ppt.
North Carolina: S 495 is working its way through the North Carolina Senate while H 864 works its way through the state house. However, the Senate bill takes a different approach, directing the North Carolina Commission for Public Health to set MCLs for PFAS. PFOA and PFOS are the only two compounds specifically called out, and the bill does not establish what those MCLs should be.
Maine: LD 75/SP 47 was introduced to amend a previous law requiring the Commissioner of Health to set MCLs of zero ppt for certain PFAS. The new bill specifies those PFAS as PFOA, PFOS, PFHxS, PFNA, PFHpA, and PFDA.
Minnesota: HF 1283 requires the Minnesota Pollution Control Agency (MPCA) to adopt rules establishing water quality standards for PFOA and PFOS and the Commissioner of Health to amend the health risk limit for PFOS to not exceed 0.015 ppb (parts per billion).
Kentucky: H 197 directs the state cabinet to establish PFAS MCLs and monitoring requirements for drinking water provided by public and semi-public water systems. No specific PFAS or limits are specified.
Indiana: H 1530 requires the Indiana Department of Health to establish MCLs for PFAS in water provided by public water systems. The bill does not specify the allowable limits but says that they must be protective of public health, including the health of vulnerable subpopulations, and may not be less stringent than any MCLs established by the U.S. EPA.
You may have noted that we did not include any dates in the above descriptions of these bills. That’s because many of them were introduced in 2022 and early 2023, and the proposed effective date has passed. Nevertheless, they are still active bills. It’s possible these state legislatures are waiting for the EPA to make its move by publishing the final NPDWR before they take up these bills again.
States Consider Mandating PFAS Testing of Private Wells
In addition to bills addressing public water systems, at least two states have introduced legislation mandating the testing of private wells for PFAS in property transfer transactions. New York’s A5979/S1650 would authorize the New York Department of Health to establish standards for the testing of drinking water from privately owned wells. Likewise, if passed, Maine’s LD 1488 directs the state Department of Health to expand previous private well testing requirements to include PFAS.
It’s important to remember that the EPA’s Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) does not mandate testing for private wells. We’re seeing an increasing number of requests for testing of drinking water from private wells. Sometimes, there is a property transfer involved, but much of the time, the request comes from individuals and smaller communities and townships concerned about PFAS in their local water supply.
The NPDWR Holding Pattern
I’ve been speaking at a lot of conferences lately and that means a lot of flying. Waiting and watching for the NPDWR to be finalized reminds me a lot of circling a busy airport waiting for an open runway. Looking out the window, I can see lots of other flights lined up, likely waiting for the same thing. As soon as our big plane lands, many smaller flights will be given clearance.
Likewise, as soon as the EPA finalizes the NPDWR rules, I expect states will quickly adjust their bills and begin to move forward. You can count on us to bring you the details when that happens!