Over the past few years, PFAS (per- and polyfluoroalkyl substances) have come under increased scrutiny by a variety of regulatory agencies.
What are PFAS?
In 2016, the United States Environmental Protection Agency (EPA) issued a lifetime health advisory for PFAS in drinking water, advising municipalities that they should notify their customers of the presence of levels over 70 parts per trillion (ppt) in community water supplies.
California is undertaking a major effort to address PFAS
The California Office of Environmental Health Hazard Assessment (OEHHA) on Nov. 17, 2017, added two PFAS, perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA), to its Chemicals Known to the State of California to Cause Cancer or Reproductive Toxicity list. However, the OEHHA has not adopted a maximum-allowable dose level below which no Proposition 65 warning is required. As a result, companies that have products that contain PFAS are at risk of being the targets of Proposition 65 claims for failing to provide adequate warning. Companies doing business in California should assess their products to determine whether they contain PFOS or PFOA and take steps to either provide appropriate warnings or eliminate the chemicals from their products. Entities that might discharge PFAS into sources of drinking water, such as landfills in which PFAS-containing products were disposed of or airports that use flame retardants that contain PFAS, are also at risk of Proposition 65 claims.
In light of potential impacts of PFAS on drinking water, the California State Water Resources Control Board in 2019 set drinking water notification levels for PFOS and PFOA at 6.5 ppt and 5.1 ppt, respectively. It also set a response level, i.e., a level above which water systems should consider taking a water source out of service or provide treatment, of 70 ppt. In March 2019, the State Water Board started a statewide assessment effort to determine the scope of contamination by PFAS in water systems and groundwater. It issued Statewide 13267 Investigatory Orders to select airports and landfills, requiring recipients to sample their soil and groundwater to determine whether PFAS were present. In addition, the State Water Board issued monitoring orders to public water systems within two miles of airports and one mile of landfills, requiring them to test for PFAS. In October, the State Water Board issued orders to hundreds of chrome-plating facilities requiring that they investigate their sites to determine whether stormwater, effluent wastewater, groundwater and/or soil at their locations are impacted by PFAS. The state also enacted AB 756, which goes into effect on Jan. 1, 2020, establishing reporting requirements for public water systems. It also provides that where detected levels of PFAS exceed the response level, the system must either take the water source out of use or provide public notification.
PFAS have been the subject of litigation under the citizen suit provisions of the federal Resource Conservation Recovery Act (RCRA) and the cost recovery provisions in the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). In addition, individuals claiming to have been injured as a result of exposure to PFAS have brought toxic tort claims.
PFAS are under increased regulatory scrutiny and are likely to be the subject of more litigation and regulation going forward. As noted, water systems, landfill operators and chrome platers in California have already been ordered to investigate for the presence of PFAS in the environment, and as of Jan. 1, 2020, public water systems whose water exceeds the response level will be required to notify customers or take the water source out of production. Clients that receive orders to investigate must consider how best to respond and should consider, among other things, whether they have insurance that would cover the costs of such investigations. All clients who may have used PFAS should evaluate their potential risks and take appropriate steps to reduce their exposure in order to avoid litigation and regulatory entanglements.