On Tap in CA: PFAS Liability & Regulation

This month the EPA released its Action Plan for PFAS regulation. The plan, which proposes greater research efforts and further work toward formal regulatory action, has been criticized by environmental groups, residents of contaminated communities, and some lawmakers who say it lacks clear, immediate action. The EPA, however, asserts that the agency is “taking a proactive, cross-agency approach” and that its Action Plan “outlines concrete steps the agency is taking to address PFAS and to protect public health.” 

State and federal regulatory action on PFOA and PFOS—harmful compounds found in materials like firefighting foam—have liability implications for California businesses and public water systems.

State and federal regulatory action on PFOA and PFOS—harmful compounds found in materials like firefighting foam—have liability implications for California businesses and public water systems.

The Action Plan, which was promised last year by former EPA administrator Scott Pruitt, proposes some key action items including regulatory action for drinking water; more research into PFAS toxicity, treatment and remediation, and testing methodology; more targeted monitoring under the next round of UCMR; clarifying cleanup strategies through hazardous substance designation and interim groundwater recommendations; consideration of the addition of PFAS to the Toxics Release Inventory and rules; and the development of a risk communication toolbox to use with the public.

The issue of PFAS pollution has gained more urgency in recent years, due in large part to UCMR 3 data revealing its national prevalence and a recent report from the CDC suggesting current health advisories may not be strict enough to address serious public health risks. In the midst of growing local concern and the delay of federal action, some states have taken it upon themselves to limit the use of two of the most persistent and dangerous PFAS compounds: Perfluorooctanesulfonic acid (PFOS) and Perfluorooctanoic acid (PFOA). While New Jersey has set enforceable Maximum Contaminant Levels (MCLs) for PFOA and PFOS at 14 parts per trillion (ppt) and 13 ppt respectively, California has taken a slightly different approach that includes PFAS liability implications for businesses.

Last year, at the recommendation of the California Office of Environmental Health Hazard Assessment (OEHHA), the State Water Resources Control Board’s Division of Drinking Water set interim Drinking Water Notification Levels of 14 parts per trillion (ppt) for PFOA and 13 ppt for PFOS—similar to yet notably less stringent than New Jersey’s limits. Prior to these new guidelines, however, OEHHA had added PFOA and PFOS to Proposition 65’s list of chemicals known to cause reproductive toxicity or cancer. The addition of PFOA and PFOS to Prop. 65 meant that as of November 2018 California businesses with 10 or more employees must provide a “clear and reasonable” warning before knowingly and intentionally exposing anyone to these chemicals. Moreover, Prop. 65’s jurisdiction extends into drinking water protections, and starting July 2019, companies doing business in California will be prohibited from knowingly and intentionally discharging PFOA and PFOS into drinking water sources. From a liability standpoint, civil penalties can cost up to $2,500 per violation per day. In keeping with California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), it is the responsibility of the business to determine whether a product warning is necessary or if a discharge is prohibited.

Understandably, this liability has caused some concern and confusion among businesses and their lawyers. In fact, Jeffrey Dintzer and Nathaniel Johnson recently penned an opinion piece published in Bloomberg contending that “OEHHA has not even established maximum allowable dose levels for PFOA or PFOS” and that the agency has yet to offer businesses “any real guidance” on how they can avoid liability. Although OEHHA is still in the developmental process of adopting “Safe Harbor” maximum allowable dose levels (MADLs) that identify levels of PFOA and PFOS exposure that are too low to require a warning, OEHHA has explained that its other regulations—specifically those found in Section 25803—provide guidance for businesses on how to calculate a warning level in the interim. Further, OEHHA has also stated that it “generally makes an effort to propose [maximum allowable dose levels] MADLs within one year of listing a chemical” and that it “will consider all relevant information in its efforts to establish MADLs for PFOA and PFOS.”  

Of course, Proposition 65 does not directly affect public water systems (PWSs). The State Water Resources Control Board aims to inform PWSs of its phased investigation Action Plan concerning PFAS in drinking water at a public meeting on March 6th. According to the Water Board’s notice, the meeting panelists will “provide updates on existing state and federal actions,” as well as present the Action Plan, which requires “testing of drinking water systems and site investigations at high risk locations.”

Although the future is not entirely clear yet, with promised federal regulatory actions in the pipeline and state regulations and limits underway, it is evident that PFOA and PFAS testing will become crucial to PFAS contamination cleanup efforts and to improving and ensuring the health and safety of the public and our drinking water supplies.