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AB 756: California’s Regulatory Response to PFAS

Client Alert

On July 31, 2019, the Governor signed Assembly Bill 756 (“AB 756” or “the Bill”), authorizing the State Water Resources Control Board (“State Board”) to order public water systems to monitor perfluoroalkyl and polyfluoroalkyl substances, commonly referred to as “PFAS.” The Bill requires a public water system to report the detection of PFAS in a number of ways further outlined below.

I.     RAISING CONCERNS OVER PFAS

Perfluorooctanoic acid (“PFOA”) and Perfluorooctanesulfonic acid (“PFOS”) are fluorinated organic chemicals that are part of a larger group of chemicals referred to as per-  and poly-fluoroalkyl substances (“PFAS”). These substances are often found in products such as carpets, clothing, fabrics for furniture, paper packaging for food, and other materials designed to be waterproof, stain-resistant or non-stick (e.g., cookware). They are also used in fire-retarding foam and various industrial processes.

People are exposed to PFAS through food, food packaging, consumer products, household dust, and drinking water. Exposure through drinking water has become an increasing concern due to the tendency of PFAS to accumulate in groundwater. Such contamination is typically localized and associated with a specific facility where these substances were manufactured or used.

II.     NOTIFICATION REQUIREMENTS

With growing health concerns over PFAS, AB 756 establishes requirements for public agencies to notify their customers regarding the presence of PFAS in water sources. The Bill specifically requires public water systems to report the presence of PFAS as follows:

  • Order: If the State Board issues a testing order, the public water system must submit the results electronically to the State Board as stated in the order.
  • Consumer Confidence Report Notification: If the test results confirm detection, a public water system must report that detection in its consumer confidence report, unless the water source is taken out of use or subsequent data shows that the response level is no longer being exceeded.
  • Section 116455 Notification: In addition to the Consumer Confidence Report Notification, PFAS that reach “notification levels” (discussed in Section IV below) must be reported pursuant to Health and Safety Section 116455, which states a public water system must provide notification within 30 days after it is informed of a confirmed detection of a contaminant found in the drinking water system that is in excess of the maximum contamination level as follows:
    • Wholesale Water System: If the public water system is a wholesale water system, the operator of the wholesale water system must notify the wholesale water system's governing body and the water systems that are directly supplied with that drinking water. If the wholesale water system is a water company regulated by the California Public Utilities Commission (“Commission”), then the wholesale water system must also notify the Commission. The Commission may order further action that is not inconsistent with the standards and regulations of the State Board to ensure a potable water supply.
    • Retail Water System: If the public water system is a retail water system, the operator of that system must notify the retail water system's governing body and the governing body of any local agency whose jurisdiction includes areas supplied with drinking water by the retail water system. If the retail water system is a water company regulated by the Commission, then the retail water system must also notify the Commission. The Commission may order further action that is not inconsistent with the standards and regulations of the State Board to ensure a potable water supply.
  • PFAS Exceed Response Level Notice: When PFAS exceed “response levels,” (discussed in Section IV below) a public water system must (1) take the water source out of use or (2) provide public notification within 30 days of the confirmed detection. Public water systems must:
    • Mail or directly deliver notice to each customer receiving a bill, including those that provide drinking water to others, and to other service connections to which water is delivered by the water system;
    • Email the notice to each customer of the water system with an email address known by the water system;
    • Post the notice on its website; and
    • Use one or more of the following methods to reach persons not likely to be reached by the notice provided by mail:
      • Publish the notice in a local newspaper for at least seven days;
      • Post the notice in conspicuous public places served by the water system for at least seven days;
      • Post the notice on an appropriate social media site for at least seven days; or
      • Deliver the notice to community organizations.

III.     NOTICE REQUIREMENTS

The Bill also outlines specific information that must be included in any of the above required notices. The notice must contain the following information:

  • A statement that there was a confirmed detection above the response level, the numeric level of the applicable response level, and the level of the confirmed detection;
  • A description of the potential adverse health effects as identified by the State Board in establishing the notification level or response level;
  • The population at risk, including subpopulations particularly vulnerable from exposure;
  • The name, business address, and phone number of the water system owner, operator, or designee, as a source of additional information concerning the notice;
  • A statement to encourage the notice recipient to distribute the notice to other persons served, using the following standard language: “Please share this information with all of the other people who drink this water, especially those who may not have received this public notice directly (for example, people in apartments, nursing homes, schools, and businesses). You can do this by posting this notice in a public place or distributing copies by hand or mail.”;
  • Information in Spanish regarding the importance of the notice or a telephone number or address where Spanish-speaking residents may contact the water system to obtain a translated copy of the notice or assistance in Spanish;
  • If a non-English speaking group, other than a Spanish-speaking group, exceeds 1,000 residents or 10% of the residents served by the water system, either of the following:
    • Information in the appropriate language regarding the importance of the notice; or
    • A telephone number or address where a resident may contact the water system to obtain a translated copy of the notice or assistance in the appropriate language.

Furthermore, AB 756 requires the notice to be displayed in a manner that catches people’s attention when printed or posted. The message in the notice must be understandable at an eighth grade reading level, and cannot contain language beyond an eighth grade reading level. The notice cannot be in print smaller than 12-point type. Finally, the notice must not contain language that minimizes or contradicts the information provided in the notice. The goal of the notice is to ensure that everyone impacted is notified of the presence and dangers of PFAS.

IV.     NOTIFICATION AND RESPONSE LEVELS

Health and Safety Code Section 116271 delegates to the Division of Drinking Water’s (“DDW”) Deputy Director the authority to issue a notification level (“NL”) pursuant to Health and Safety Code Section 116455. NLs are health-based advisory level standards that are established for chemicals not formally regulated through maximum contamination levels or “MCLs.” When contaminates exceed the NL, DDW requires the public agency to notify its consumers. When contaminates exceed the response level (“RL”), DDW recommends removing the drinking water source.

In August 2019, the Office of Environmental Health Hazard Assessment (“OEHHA”) recommended NLs for PFOA and for PFOS be set at the lowest levels at which they can be reliably detected in drinking water using currently available and appropriate technologies.  This recommendation is based on OEHHA’s development of reference levels intended to protect against cancer and noncancer effects, including effects on the liver and immune system. DDW established NLs at 6.5 parts per trillion for PFOS and 5.1 parts per trillion for PFOA. These levels are consistent with OEHHA’s recommendations. The NL levels are among the strictest in the nation. There were no changes to the RLs for these contaminants, which are currently set at 70 parts per trillion individually or combined.

V.     PRACTICAL IMPLICATIONS

The passage of AB 756 is part of a larger regulatory scheme to police the levels of PFAS in water sources and inform people of their presence.  First, public water agencies should be advised that they may receive testing orders. A number of agencies have already received testing orders. Testing orders must be followed precisely. Following the tests, public water agencies must be prepared to not only read and interpret the results, but determine whether the results trigger notification requirements.

Second, public water agencies should be prepared to provide notice as required by AB 756 (see Section III, above). This may require staff training. Public notification may also raise additional concerns from customers. Public agencies are advised to prepare for questions from customers and/or consider conducting a public outreach campaign to help alleviate public concerns.

Finally, public water agencies will likely incur additional costs as a result of the notification, testing and monitoring requirements. The Bill is silent on whether the State will provide any funding to cover its mandates.  Testing must be conducted in one of the eight accredited laboratories in California. Water agencies must also consider the costs and consequences of having to possibly shut down or discontinue the use of contaminated water sources. Public agencies may decide to pursue legal remedies available against the entities which caused the contamination. 

For further information, please contact Christine Carson or Alondra Espinosa from Aleshire & Wynder, LLP’s Water Practice Group at (949) 223-1170.

Disclaimer:  Aleshire & Wynder, LLP legal alerts are not intended as legal advice.  Additional facts or future developments may affect subjects contained herein.  Please seek legal advice before acting or relying upon any information in this communication.