General Publications September 18, 2019

“New Calif. Law Represents Strategic Shift in PFAS Regulation,” Law360, September, 18, 2019.

Extracted from Law360

California has passed a new law that makes it the first state in the country to require public water suppliers to notify customers if their water contains per- and polyfluoroalkyl substances, or PFAS. A.B. 756,[1] which Gov. Gavin Newsom quietly signed into law at the end of July, is the first California law to regulate PFAS, and represents a strategic shift in the state’s ongoing efforts to regulate this emerging class of contaminants.

PFAS are a group of approximately 5,000 synthetic organic compounds that are used in a wide range of consumer products and industrial processes, including paper manufacturing, fast food packaging and firefighting foam. PFAS are particularly water-soluble, and have been showing up in public water systems throughout the country.

In response, regulators at all levels have moved to address PFAS contamination, particularly for the compounds perfluorooctanoic acid, or PFOA, and perfluorooctane sulfonate, or PFOS, two of the most common contaminants in the PFAS family.

Up until now, all of California’s efforts to regulate PFAS have been at the administrative level. For example, in November 2017, the California Office of Environmental Health Hazard Assessment, or OEHHA, added PFOA and PFOS to the Proposition 65 list of chemicals known to the state to cause reproductive toxicity.[2]

A.B. 756 provides the State Water Resources Control Board, a powerful state agency with broad regulatory authority over water quality, the power to force all public water systems to monitor their water supplies for PFAS, and to alert consumers if such chemicals exceed specific levels set by the board.[3]

If a PFAS chemical detection exceeds the Water Resources Board’s notification level — which is the level at which the board recommends further monitoring and assessment — then the water supplier must notify consumers in its annual report that it has exceeded the notification level. If a PFAS chemical detection exceeds the Water Resources Board’s response level — which is higher than the notification level and the level at which the board recommends taking that source out of service, or treating the water before it is served — then within 30 days, the water supplier must either shut off that water source or notify consumers that it has exceeded the response level.

Exceeding either the notification or response level would not force a water supplier to shut down a water source, but merely to notify consumers. A.B. 756 will become effective on Jan. 1, 2020. 

It easily passed the state Assembly and Senate, despite opposition from the Association of California Water Agencies, or ACWA, a coalition of public water agencies. “ACWA opposed the bill because it sets a precedent specific for PFAS contaminants via legislation instead of well-established notification and regulatory processes,” the group said in a statement after A.B. 756 was signed into law.[4]

PFAS regulation in California may become more politicized following the passage of A.B. 756. “This is another step towards environmental justice in communities like mine that have been treated as wastelands,” Assemblywoman Cristina Garcia, D-Bell Gardens, who sponsored the bill, said in a statement after it was signed into law.[5] “California now leads the nation by requiring reporting to consumers of these ‘forever chemicals’ in our public water systems.” For his part, Gov. Gavin Newsom made no public statement upon signing the bill into law.[6]

The Water Resources Board has moved quickly to flex its newfound powers. On Aug. 23, the board significantly reduced the notification levels for PFOA, from 14 parts per trillion to 5.1 ppt, and PFOS, 13 ppt to 6.5 ppt.[7] This lowering of notification levels is likely to expand the number of notifications that will be required under A.B. 756.

At the same time, the Water Resources Board announced that it has requested that OEHHA develop public health goals for PFOA and PFOS, which represents the first step in establishing a maximum contaminant level for drinking water. If a maximum contaminant level is established, then the board could shut down any water source where PFAS exceeds that level.

It’s unclear what effect the one-two punch of lowering PFAS notification levels and requiring broader notification of the presence of PFAS may have on public water supplies, but ACWA previously said lowering notification levels alone would undermine confidence in public water supplies, and could lead to the shuttering of wells.

In a comment letter in response to the Water Resources Board’s proposed lowering of notification levels for PFOA and PFOS, ACWA said that many wells would test above the lower levels, leading consumers to cry foul once notified that their water contains such chemicals.

“Providing drinking water above those levels would undermine the public’s confidence in the overall safety and quality of their drinking water supplies,” ACWA said in its comment letter.[8] “Water systems would therefore be compelled to remove numerous wells — at least 30% or more for many impacted water systems — that, notwithstanding PFOA and PFOS, are in compliance of existing drinking water regulations.”

The Water Resources Board has shown that is willing to take aggressive steps to regulate PFAS using its existing powers. Prior to A.B. 756’s passage, the board could only order individual water systems to test for PFAS. The board did just that in March 2019, when it issued orders to 600 water system sites, and nearly 250 locations such as municipal solid waste landfills, and airports with fire training and response areas[9]

With the passage of A.B. 756, there is likely to be more legislation to regulate PFAS in California, and it’s possible the Water Resources Board’s powers could expand further. Such additional regulations could have far-reaching effects on water systems throughout the state. Testing will undoubtedly set into motion a chain of events, including regulatory oversight and litigation involving all stakeholders in the PFAS saga.


 

[1] https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB756.

[2] https://oehha.ca.gov/proposition-65/crnr/chemicals-listed-effective-november-10-2017-known-state-california-cause.

[3] https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB756.

[4] https://www.acwa.com/notifications/acwa-advisory-pfas-bill-mandates-new-monitoring-requirements-new-response-level-pending/.

[5] https://a58.asmdc.org/press-releases/20190801-california-first-nation-mandate-public-notifications-toxic-water-forever.

[6] https://www.gov.ca.gov/2019/07/31/governor-newsom-signs-legislation-6/.

[7] https://www.waterboards.ca.gov/press_room/press_releases/2019/pr082319_pfoa_pfos_guidelines_news_release.pdf.

[8] https://www.acwa.com/resources/acwa-comment-letter-on-notification-levels-for-pfoa-and-pfos/.

[9] https://www.waterboards.ca.gov/pfas/docs/7_investigation_plan.pdf; https://www.waterboards.ca.gov/pfas/docs/airport_pfas_13267_go_03202019.pdf; https://www.waterboards.ca.gov/pfas/docs/landfill_pfas_13267_go_03202019.pdf.

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