October 20, 2019

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Groundwater Contaminant Regulation in California: State Water Board Lowers Notification Levels and Announces First Step Towards Developing an MCL for Certain Compounds

In June of 2018, the California State Water Resources Control Board (State Water Board) Division of Drinking Water (DDW) provided recommendations for PFOA and PFOS notification levels.  On July 13, 2018, the State Water Board released guidelines based on DDW’s recommendations for testing and reporting on two PFAS compounds—PFOA and PFOS. The interim notification level for PFOA was 14 parts per trillion (ppt) and 13 ppt for PFOS. Notification levels are non-regulatory health-based advisory levels established by the DDW for chemicals in drinking water that lack an enforceable regulatory standard called a maximum contaminant levels (MCLs). In addition to setting interim notification levels for PFOA and PFOS, the State Water Board also included an interim response level of 70 ppt combined for PFOS and PFOA whereby if the combined level is exceeded, the State recommended the water system remove the source from service. These guidelines did not require public water systems to test for PFOA and PFOS, but did require water systems voluntarily opting to test to report if the notification levels were exceeded.

On July 31, 2019, AB 756 passed as the California Legislature’s first PFAS-related action. AB 756 adds Section 116378 to the California Health and Safety Code and authorizes the State Water Board to order a public water system to monitor for PFAS in accordance with conditions set by the State Water Board. Practical detection limitations currently reduce the scope of the law to 14-18 compounds.  The effect of the legislation is that the State Water Board can now require public water systems to test for PFAS.

First, if any monitoring undertaken pursuant to such State Water Board order results in a confirmed PFAS detection, the water system must report that detection in its annual consumer confidence report. Second, for PFAS compounds with notification levels, water systems are required to report the detections response levels, in accordance with H&S Code 116455, which requires a retail water system to notify its governing body and other governing bodies who may be stakeholders (see H&S Code 116455(a)(1-2)). Third, where a detection exceeds the response level, the water system must take the water source out of use or provide public notification within 30 days of the confirmed detection. AB 756 establishes a variety of requirements for providing sufficient public notice in the event of a detection exceeding the response level, including requiring community water systems to provide notice by mail and e-mail to each water system customer.

California has embarked on a statewide assessment to identify the scope of PFAS contamination in the state, focusing primarily on PFOA and PFAS. In April 2019, in the first phase of this investigation, the State Water Board ordered more than 200 public systems statewide to sample over 600 drinking water wells near airports, landfills, and areas where PFAS was previously found.  Data from these locations will continue to be collected, and “more water system data of other types of sources at industrial sites and waste water treatment systems will be collected” to help determine the prevalence of PFAS constituents in groundwater in the state.

Most recently, on August 23, 2019 the State Water Board announced it had lowered its notification levels for PFOA and PFOS to 5.1 ppt and 6.5 ppt, respectively.  The announcement also stated that response levels for these contaminants will be updated this fall.

In the same press release, the State Water Board also announced it has begun the process to establish regulatory standards for these two chemicals by requesting the California Office of Health Hazard Assessment to establish a public health goal (PHG). A PHG is a level of a chemical contaminant in drinking water below which there are no known or expected health risks. PHGs are non-enforceable standards based entirely on health considerations. Once a PHG is established, an MCL can be developed. The State Water Board is required to set an MCL for a contaminant as close to the PHG as possible, taking into consideration the best available treatment technology and cost-effectiveness.

California now has the lowest notice levels for PFAS in the entire country. With the State Water Board possessing the authority to require public water systems to sample for PFAS compounds and response levels forthcoming this fall for two of these compounds, industrial companies and property owners of industrial sites in California should track these regulatory developments closely. Companies and property owners should also monitor the activities of local and regional water districts charged with protecting water resources within a discretely defined boundary.

© Copyright 2019 Squire Patton Boggs (US) LLP

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About this Author

Jonathan King, Water Resource Management, Environmental Attorney, Squire Patton Boggs Law Firm
Associate

Jonathan King’s practice focuses primarily on western water resource management and policy issues, natural resources and environmental law matters. Jonathan has experience in US state and federal water policy, federal Indian law and the Law of the Colorado River. He has worked on a number of western water scarcity issues, including a report on potential water investment mechanisms in the Western United States.

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