What EPA’s New PFAS Drinking Water Guidance Means for Maine and New Hampshire

On June 15, the Environmental Protection Agency (“EPA”) announced revisions to its drinking water advisories to drastically lower the levels of the chemicals perfluorooctane sulfonic acid (“PFOS”) and perfluorooctanoic acid (“PFOA”) considered safe and to add safe drinking water levels for perfluorobutane sulfonic acid and its potassium salt (“PFBS”) and hexafluoropropylene oxide dimer acid and its ammonium salt (“GenX chemicals”). These four compounds are part of the group of per- and polyfluoroalkyl substances (“PFAS”) that are known as “forever chemicals” and that are widely found in Maine and New Hampshire. EPA’s new advisory levels are much more stringent than those currently enforced by Maine Department of Environmental Protection and New Hampshire Department of Environmental Services.

While the new standards are only advisory, they do signal that the enforceable standards that EPA will announce in its anticipated drinking water regulations and revised Comprehensive Environmental Response, Compensation, and Liability Act regulations will be significantly lower than standards currently enforced in Maine and New Hampshire. These final regulations are expected sometime in 2023, though EPA has not yet initiated a rulemaking proceeding.

This has significant implications for properties with contaminated groundwater, landfills, and wastewater treatment facilities.  It is already technologically difficult and extremely expensive to remediate these compounds, and it remains uncertain if it will be possible to reliably remediate to the extent that may be required by EPA. In fact, using current technology, there is no known method to detect PFOS and PFOA at the levels in EPA’s advisory, making those levels zero for all practical purposes.

How to Prepare:

Landowners with known or potential PFAS contamination on their property should prepare for these likely changes by reviewing past PFAS testing on their property where available. Additionally, landowners should familiarize themselves with the scope of potential actions by state and federal environmental agencies, potential clean-up obligations, and potential claims of personal injury plaintiffs. Public entities, including water districts and municipalities with known or suspected PFAS contamination should also consider applying for federal grant money that has been designated to address PFAS in drinking water. Information about the Emerging Contaminants in Small or Disadvantaged Communities Grant can be found on EPA’s website here.

Bernstein Shur’s Environmental & Energy Practice Group will continue to monitor these regulatory changes and will provide updated guidance as it becomes available. We strongly encourage entities affected by these updates to reach out to our team for further guidance.