08 March 2019, by Adam Baas, George Gigounas
On March 6, at a first-of-its-kind public meeting, the California State Water Resources Control Board (California's top water agency) made two major announcements regarding a critical emerging contaminant category, perflouroalkyl substances (PFAS), that will impact thousands of industrial facilities and drinking water systems over the coming years.
The first announcement provides some clarity to industry that cleanup levels are some ways off, but the second initiates a major investigation effort that relevant businesses must prepare for:
- California will not initiate steps to promulgate Maximum Contaminant Levels (MCLs) for PFOA and PFOS in California's drinking water in the near term and
- The Water Board intends to immediately roll out a "PFAS Phased Investigation Plan" to systematically obtain PFAS effluent and drinking water data. – Phase I will involve over 1,500 airports, landfills and drinking water wells across the state. Phase II will cover Refineries, Bulk Terminals, non-airport fire training areas, and urban fire areas. Phase III will cover secondary manufacturers, waste water treatment plants, and domestic wells.
The public meeting was to provide information on potential sources and risks of PFAS in California's drinking water. Invited panelists included (notably) no industry representatives, but did included the Water Board's Division of Drinking Water (DDW), California's Department of Toxics Substance Control (DTSC) and Office of Environmental Health Hazard Administration (OEHHA), the US EPA, US Navy, and several NGOs including Clean Water Action, Natural Resources Defense Council, and California Communities Against Toxics. Agenda and bios can be found here.
PFAS are a group of over 4,000 manmade chemicals generally resistant to heat, water and oil, which have been used extensively in consumer products such as carpets, clothing, fabrics for furniture, paper packaging for food, fire-fighting foams and other industrial processes. PFAS are persistent in the environment. Some bioaccumulate. Some (disputed) studies demonstrate that exposure to PFAS may have a detrimental health effect on human health.
The March 6 meeting will have major ramifications. In 2016, the US EPA published non-regulatory, lifetime Health Advisory Levels (HALs) for the two key PFAS chemicals – perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) – in drinking water of 70- parts per trillion combined. These are very low levels, although some states have since gone lower. But unlike other states, California has not formally adopted the HALs nor established legally actionable levels of its own. Given the size and importance of PFAS-implicated industry in California, the key state regulators' next steps are critical.
The panelists were well-prepared and well-versed on a common theme – PFAS in California's drinking water is "very concerning," the state "must act now" and any future comprehensive regulatory scheme should involve more than the most commonly tested and understood PFAS – PFOS and PFOA – and address the chemicals as a "class" if possible. In other words, California regulators are looking beyond the scope of US EPA's 2016 HALs.
At the end of the panelists' presentations, Deputy Director of the DDW Darrin Polhemus and Assistant Deputy Director of the Division of Water Quality Shahla Farahnak announced the two key introductory elements of California's nascent approach to regulating PFAS in drinking water: (i) MCLs are not yet imminent but (ii) the Water Board will immediately roll out Phase I of its "PFAS Phased Investigation Plan" to airports, landfills and drinking water wells.
The Water Board's decision to hold off on MCLs, at least in 2019, is not a surprise. But the Investigation Plan, anticipated in some form for months, is more bold and robust than many expected and will focus not only on drinking water supply wells and airports, but, in Phases II and III, what DDW describes as "primary and secondary" manufacturing facilities, refineries, bulk terminals, fire training facilities, waste water treatment plants and more.
This data hunt will affect thousands of facilities, drinking water systems and private drinking water well owners. It is easily the largest data hunt for PFAS in drinking water California has ever endeavored, and demonstrates how seriously the state is taking the potential threat of PFAS.
California will not begin to set MCLs for PFOA and PFOS in 2019
California's Health and Safety Code requires the Water Board to establish a contaminant's maximum contaminant level (MCL) at a level as close as technically and economically feasible to its public health goal (PHG). The PHG, established by OEHHA, is the contaminant's concentration in drinking water that poses no significant risk to health. Once OEHHA establishes the PHG, the Water Board evaluates the technical and economic feasibility of regulating the chemical and sets the MCL. Roughly speaking, it takes OEHHA about two years to publish a chemical's PHG and the Water Board an additional two years to generate MCLs – a long, costly and arduous process.
OEHHA has not begun the task of generating PHGs for PFOA or PFOS, nor has the Water Board asked it to. Instead, OEHHA has listed the two chemicals on the California Proposition 65 list of contaminants (see our earlier post here) and advised the Water Board on interim Notification Levels, or non-binding notice levels suggested to drinking water sources in the state (see our earlier post here). Importantly, neither listing provides agencies or private parties a direct cause of action against a PFAS discharger. Thus, since the EPA issued its HALs in 2016, the question has always been: when will DDW ask OEHHA to begin the process of setting PHGs for PFOA and PFOS?
Mr. Polhemus answered this question during his presentation. DDW is not prepared to ask OEHHA to move on the issue of PHGs for PFOA and PFOS, or any PFAS. To paraphrase, the science behind PFAS toxicity remains in flux and is insufficient (with large toxicity data gaps) to support an MCL process. Further, PFAS are a large class of chemicals and the time and expense of seeking MCLs for each individual chemical is viewed as an inefficient and likely ineffective means to manage the chemicals in the environment. More research must consider whether and how PFAS may be regulated, including whether as a class or set of classes of chemicals (similar to dioxin or PCBs).
The five-member Water Board, after hearing the presentations, were not entirely satisfied with this position. In the end, it was informally agreed that the Water Board, in conjunction with the other relevant state agencies, would look into developing an action plan of sorts on how to fill the data gaps and ultimately set regulatory levels for PFAS as a class or individually. Agency representatives in the room agreed. In our view, this marks the first time California state agencies have formally considered approaching the regulation of PFAS as a class and not via individual MCLs or other actionable levels.
This potential focus on regulating PFAS as a class is a very important shift, and could have a dramatic impact on how shorter chain "replacement" PFAS are regulated in the environment. Affected industry players should watch these developments closely.
The Water Board's PFAS phased Investigation Plan will have broad industry impacts
In Phase I of its Investigation Plan, beginning this month (March), the Water Board will issue orders under California Water Code §13627 (discharges from facilities) and Health and Safety Code §116400 (drinking water sources) to:
- 31 airports and 578 drinking water wells within a 2-mile radius of the airports
- 252 municipal solid waste landfills and 353 drinking water wells in within a 1-mile radius of the landfills and
- 389 impacted drinking water sources within a 1-mile radius of systems flagged in the EPA's Unregulated Contaminant Monitory Rule (UCMR) as having hits of PFAS (tested at that time) and adjacent, smaller drinking water systems as deemed necessary on a case-by-case basis.
Under Water Code §13627, the Water Board may order a discharger (here, airports and landfills) to submit technical or monitoring reports providing information about volumes of chemical discharged from a facility, including through storm water and industrial process water discharges. The orders often directly implicate a facility's discharge (NPDES) permit issued by the Water Board, or its lack of such a permit. Failure to comply may subject the facility operator to civil and criminal penalties. During its presentation, DDW specified it would be seeking answers to a questionnaire concerning PFAS use, a work plan for testing, and testing for PFAS from each facility. For landfills specifically, the Water Board will be ordering a one-time testing event in search of PFAS.
Under Health Code §116400, if the Water Board determines that a public water system is subject to potential contamination, the Water Board may, by order, require the public water system to conduct a periodic water analysis in accordance with conditions specified by the Department. To date, California has not required public water systems to report on PFAS. Instead, the Water Board issued the interim Notification Levels last year, which have no enforcement effect at all. Thus, issuing §116400 orders will be a major shift in how California regulates its drinking water systems.
Phases II and III are set to begin in Fall 2019 or shortly thereafter. Neither Mr. Polhemus nor Ms. Farahnak stated what "secondary" manufacturing facilities will be targeted, but several presentations throughout the workshop highlighted the historical "metal plating" operations in California as a potential source of PFAS. Additionally, the EPA's recently published "Action Plan" (found here) identifies the following point-source categories that it intends to target for additional waste discharge studies: organic chemicals, plastics, synthetic fibers, pulp and paper, textiles and airports. Thus, one may predict these facilities will be in the mix of "secondary" sources the Water Board will be targeting.
A look ahead
Without question, other than the US EPA's HALs and individual states setting action levels for PFAS chemicals, new data has been the main force driving the increase in enforcement and litigation over PFAS contamination that we have seen throughout the country. The new push by the California Water Board will likely have similar effects in California, especially since the Water Board intends to make all data publicly available and easy to navigate.
Current Water Board programs include the Groundwater Ambient Monitoring and Assessment Program (GAMA) website, which allows users to enter locations and see data presented in a map figure – PFAS is set to end up in the GAMA interface. The lack of MCLs in California should not be of particular solace to industry, either. Absence of MCLs has not stopped enforcement and litigation throughout the country, but only slowed it.
The Water Board orders going out this month will pose a variety of challenges to facilities and well operators, and should be addressed carefully by recipients, who are well advised to consult experienced counsel in developing strategies and responses.
Learn more about this development by contacting any of the authors.