Delaware Agencies Announce “Forever Chemicals” Regulatory Plan

March 18, 2022

Publication| Environmental| Real Estate Services

On October 20, 2021, Delaware Governor Carney signed the Drinking Water Protection Act (the “Act”), which directs the Division of Public Health (“DPH”) to establish maximum contaminant levels (“MCL”) for certain “forever chemical” contaminants found in Delaware public drinking water systems, namely perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid or perfluorooctane sulfonate (“PFOS”). The Act requires that the MCL for these substances be developed “in accordance with evidence-based standards and assessments conducted by” the EPA, and in collaboration with the Department of Natural Resources and Environmental Control (“DNREC”).

DPH has recently released its MCL Implementation Plan, with proposed regulatory standards and a schedule for development and adoption of a regulation. The plan proposes primary MCLs of 14 parts per trillion for PFOS and 21 parts per trillion for PFOA. Additionally, the plan states that a sum of PFOS and PFOA exceeding 17 parts per trillion will be considered an MCL exceedance. DPH is targeting to publish a final regulation in September or October 2022, and the MCLs will become effective six months after the final regulation is adopted.

Under the DPH proposal, providers of drinking water will be required to sample within six months of the effective date of the regulation. If an exceedance is less than twice the MCL, resampling will be allowed, but an exceedance of more than twice the MCL will require an immediate response, including possible alternate water sources or installation of treatment. Samples showing concentrations greater than or equal to 50% of the MCL will trigger agency outreach to discuss preventative measures.

DNREC expects that the MCL values for PFOS and PFOA will be adopted as screening levels for site investigation and remediation programs, including the Brownfields program. The MCL may also have application for NPDES permitting, indirect discharge permitting, and in other regulatory contexts.

Richards, Layton & Finger attorneys are monitoring the evolving MCL and PFAS regulatory landscape and its potential impact on our clients. Please contact a Richards Layton attorney if you have questions or comments on this ongoing regulatory action.

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