Updated DNREC PFAS Guidance in Effect
This past year, the Delaware Department of Natural Resources and Environmental Control (DNREC) adopted a new informal policy document with potential wide-ranging impacts to the regulated community in the area of PFAS. Specifically, DNREC formally issued a comprehensive update to its Policy for Sampling and Evaluation of Per- and Poly- Fluoroalkyl Substances (PFAS) in Soil, Groundwater, and Surface Water (the PFAS Policy) on July 2, 2023. This updated a policy that was issued in July 2018. The PFAS Policy was not adopted as a regulation pursuant to Delaware’s Administrative Procedures Act, and therefore, not subject to the same level of public input and comment required under that law. Nevertheless, the PFAS Policy is expected to be used by DNREC in administering its HSCA regulatory program.
According to DNREC, the PFAS Policy is intended to establish uniform investigation and risk assessment procedures for PFAS cleanups under Delaware’s Hazardous Substance Cleanup Act (HSCA) so that they are completed in a consistent and verifiable fashion. In support of the PFAS Policy, DNREC also prepared a Question-and-Answer Document (Q&A Document) that provides additional insight into the purpose of the PFAS Policy and some of the information provided therein.
The PFAS Policy specifically applies to PFAS substances that are identified in the HSCA screening level table, also found on DNREC’s webpage. However, please note that there are more than twice as many PFAS analytes identified in Table 2 of the PFAS Policy than there are in the screening level table, as of November 2023. In other words, the PFAS Policy purports to require the analysis of compounds that are not used for screening under HSCA and that, therefore, are not designated hazardous substances under HSCA. However, DNREC separately explained in the Q&A Document that the PFAS Policy applies only “to PFAS that are classified as hazardous substances under HSCA.” A wider class of PFAS chemicals were included in the PFAS Policy simply “for expedience,” though DNREC encourages regulated parties to sample for and report additional PFAS beyond those listed as hazardous as it might “save time and money” “if additional PFAS compounds become hazardous substances under HSCA,” according to the Q&A Document.
This is a potential major source of confusion for the regulated community. Given that both the PFAS Policy includes non-hazardous PFAS, and DNREC is encouraging the voluntary sampling for and reporting of non-hazardous PFAS, any purported application of the PFAS Policy by DNREC, an environmental consultant, or others will need to be closely monitored by the regulated community.