Extracted from Law360
California has unleashed a deluge of regulatory orders seeking complicated and expensive testing investigating potential releases of per- and polyfluoroalkyl substances, or PFAS, at suspected dischargers throughout the state. While these orders will be burdensome and costly for the recipients, California’s regulators, like the federal regulatory agencies, have acknowledged that there is still considerable scientific uncertainty surrounding the health impacts of PFAS.
On March 6, 2019, the California State Water Resources Control Board hosted a workshop panel of representatives from various federal and state agencies and environmental advocacy organizations to present information to the SWRCB and the public regarding PFAS. PFAS consist of thousands of different fluorinated compounds that have attracted significant regulatory attention nationwide based on their widespread use and release in industrial and consumer products, their long-term persistence and mobility in the environment, their ability to accumulate and magnify within plant and animal tissue, and the potential that they may cause adverse health effects.
The PFAS workshop resulted in a wide diversity of opinions and criticisms from both public and nonprofit organizations regarding how the state should proceed in its regulation of PFAS. But the most notable bit of new information concerns the SWRCB’s disclosure that new investigative orders will be issued shortly against a wide variety of industry and agency entities. Darrin Polhemus, deputy director of the SWRCB's Division of Drinking Water, and Shahla Farahnak, the division's assistant deputy director, presented a phased investigation plan that will require testing of drinking water systems and site investigations at high-risk locations in California.
The SWRCB’s investigation will begin by focusing on high-priority facilities that are most likely to have used PFAS at some time. These priority targets will need to supply the state with more information about where and to what extent PFAS may exist in the groundwater underneath the facility. The SWRCB has begun to issue these orders to Phase 1 targets, including landfills and airports, starting the clock for the submission of sampling workplans that are due in 60 days. Final technical reports, due in 90 days, will include the PFAS sampling analysis, results and maps of sampled areas. Phase 2 investigative orders will be issued to other small public water systems, manufacturing sites, refineries, bulk terminals and non-airport fire-training areas. Phase 3 investigative orders will be issued to secondary manufacturing sites, wastewater treatment facilities, pretreatment plants and domestic wells.
The issuance of hundreds of investigative orders will cause a significant increase in testing within the state, and recipients of these orders will have to quickly get up to speed on complicated collection and testing methodologies. Because the regulatory limits are in the minuscule parts-per-trillion, or ppt, range, it is quite difficult to find certified laboratories that are actually capable of conducting these tests. In fact, the Orange County Water District just recently announced that its lab was certified for detection of PFOA and PFOS. It is the first public agency in California to do so. The SWRCB will be hosting a public presentation on April 5, 2019, to provide an overview of existing testing technologies.
Currently, California has adopted drinking water notification levels of 14 ppt for PFOA and 13 ppt for PFOS. These notification levels are advisory recommendations to public water systems. Because PFAS are widely found in clothing, food packaging, office supplies and laboratory equipment, rigorous testing protocols are needed to prevent cross-contamination when taking samples. State law mandates the reporting of exceedances of the notification levels for PFOA and PFOS. As a result, those facilities receiving Phase 1 orders must be careful to avoid creating “false positives,” where PFAS are incorrectly reported as exceeding the notification levels.
While the state has set notification levels, there are currently no enforceable drinking water or hazardous cleanup standards for PFAS in California. In fact, the agency representatives reported to the SWRCB during the March 6 workshop that there is currently no effort to move forward with an enforceable drinking water standard in California because the available scientific data on the toxicity of PFAS would not be able to support such a standard at this time.
Federal agencies have expressed similar hesitancy in providing conclusions about the health effects of PFAS. The U.S. Centers for Disease Control and Prevention continues to admit that PFAS “[s]tudies in humans and animals are inconsistent and inconclusive [and] [c]onfirmatory research is needed.” The CDC went on to note that epidemiological studies have reached conflicting results when looking at whether PFAS exposure could cause cancer, and “most did not control for other potential factors including heavy smoking.”
Based perhaps on this recognition that the available science is insufficient, the CDC and the Agency for Toxic Substances and Disease Registry announced in February 2019 that it will proceed with large-scale exposure assessments involving affected communities in eight cities as part of a future multisite health study to analyze the relationship between PFAS exposure and health outcomes.
This type of foundational exposure data is critical before scientists will be able to draw any credible conclusions concerning the health impacts of PFAS when exposed to the low parts-per-trillion levels that are being discussed by federal and state agencies. As shown by the recent announcement, the federal agencies have recognized that they do not have sufficient data to make these conclusions, and thus it will likely be several years before we will be able to have meaningful certainty.
While the headlines concerning PFAS contamination will certainly continue to draw public concern and may encourage more public agencies to impose burdensome actions like the SWRCB’s phased investigation plan, any agency action should take into account the cost of these actions compared against what benefit that they can expect to obtain given the uncertain science.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.