The Nickel Report

As explained in an earlier post, PFAS (per- and polyfluoroalkyl substances) are highly fluorinated manmade compounds that are reported to have a variety of adverse health effects. PFAS are resistant to heat, water and oil. These properties have led to use of PFAS compounds in a wide-range of products designed to be waterproof, stain‑resistant or non‑stick, such as carpets, furniture, cookware, clothing and food packaging. They are also used in fire retardant foam at airfields and industrial processes involving flammable and combustible liquids. PFAS compounds are resistant to chemical breakdown. This property, combined with their extensive use, explain why PFAS compounds are being found in drinking water supplies throughout the country.

PFOA (perfluorooctanoic acid) and PFOS (perflurooctane sulfonic acid) are the most well-known PFAS compounds and have been the primary focus of regulatory attention. The United States Environmental Protection Agency issued a 2016 non-binding health advisory of 70 parts per trillion (ppt) for PFOA and PFOS, either singly or combined. EPA defines this as the concentration of PFOA and PFOS in drinking water below which adverse health effects are not anticipated to occur over a lifetime of exposure.

Like many other states, California has decided to adopt its own PFAS standards and is regulating them under a variety of programs.

Drinking Water

Effective July 13, 2018, the California State Water Resources Control Board’s Division of Drinking Water (DDW) established drinking water notification levels of 14 ppt for PFOA and 13 ppt for PFOS, and a combined PFOA/PFOS drinking water response level of 70 ppt, which are available here. Notification and response levels are non-binding, health-based advisory levels for contaminants in drinking water where maximum contaminant levels (MCLs) have not been promulgated. Establishment of notification and response levels often is the DDW’s first step toward adopting binding MCLs.

Water providers are not required to test for contaminants with notification or response levels. However, if they do test, and a contaminant exceeds a notification level, they are required to notify their governing body, the water systems they directly supply and the local agencies (i.e., city and/or county) whose jurisdiction includes areas supplied with their drinking water. Water systems regulated by the California Public Utilities Commission must also notify the commission. The DDW recommends, but does not require, consumers be informed of notification level exceedances.

The combined 70 ppt response level is the concentration where the DDW recommends that additional steps be taken to reduce public exposure to PFOS/PFOA. Generally, this involves taking the drinking water source out of service. If the source is not taken out of service, the DDW recommends both local agency and customer notification. The DDW retains the right to provide notification of a response level exceedance should a water provider elect not to issue the notice.

Proposition 65

Effective November 10, 2017, California added PFOA and PFOS to California’s Proposition 65 list of chemicals known to the State to cause reproductive toxicity. As a result, no later than November 9, 2018, businesses will be required to provide a “clear and reasonable warning” before “knowingly and intentionally” exposing a person to either chemical. Likewise, Proposition 65’s “discharge prohibition,” which prohibits a business from knowingly discharging or releasing a Proposition 65 listed chemical into a drinking water source or onto land where it can or probably will pass into a drinking water source, will take effect in July 2019 for both chemicals.

Safer Consumer Products

In April 2018, the public comment period ended for adding more than 3,000 PFAS compounds used in carpets and rugs as “Priority Products” under the California Department of Toxic Substances Control’s Safer Consumer Products law. Should the listing become final, “responsible entities” will be required to evaluate alternative chemicals for use as soil- and stain-resistant repellents in carpets and rugs sold in California.

Given the ongoing concerns raised about PFAS compounds, water providers, as well as those associated with the generation, use and disposal of PFAS compounds, should anticipate increased regulatory scrutiny, as well as the potential for litigation alleging groundwater and drinking water contamination.