New Screening Levels for Key PFAS Chemicals Will Spur Regulatory Action at Contaminated Sites

Read the full article by Donald Sobelman & John Ugai, Farella Braun + Martel LLP (JD Supra)

“In support of the State Water Resources Control Board’s (State Board) efforts to investigate and evaluate the public health effects of per- and polyfluoroalkyl substances (PFAS), the San Francisco Regional Water Quality Control Board (Regional Board) has released interim final Environmental Screening Levels (ESLs) for two of the most prevalent PFAS compounds: perfluorooctane sulfonate (PFOS) and perfluorooctanoate (PFOA). The Regional Board, other environmental agencies, and private parties use ESLs to help identify and evaluate potential human health and ecological concerns at contaminated sites. Although these ESLs are not yet formally incorporated in the Regional Board’s policy documents, they provide key guidance regarding what levels of PFAS contamination will require investigation and, potentially, cleanup, going forward across the state. In an accompanying memorandum, the Regional Board also confirmed its regulatory approach for PFAS testing, investigation, and cleanup.

The Current Federal and State Regulatory Landscape for PFAS

PFAS are synthetic, human-made compounds that were manufactured in the United States beginning in the 1940s. Their ability to repel oil and water led to their widespread use in consumer products, such as non-stick pans, outdoor gear, raincoats, carpets and upholstery, and food packaging. PFAS compounds were also widely used in industrial processes, including chrome plating, electronics manufacturing, and firefighting foams.

As Farella discussed in a previous article, federal law currently does not regulate PFAS, either under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) or through other enforceable limits such as maximum contaminant levels (MCLs) in drinking water. However, the U.S. EPA has pledged to evaluate potential PFAS regulations, including designating certain compounds as “hazardous substances” under CERCLA, setting enforceable MCLs, and developing regulatory standards for PFOS and PFOA at cleanup sites.

In the meantime, California and other states have begun efforts to investigate and regulate PFAS contamination. In 2019, the State Board sent PFAS investigation orders to several types of priority facilities across the state (including commercial airports, municipal solid waste landfills, and chrome plating facilities), as well as hundreds of public water systems that are in proximity to such facilities and/or have had PFAS detections. The State Board intends to send similar orders to a number of other types of priority facilities (including oil refineries and bulk terminals and wastewater treatment plants) later in 2020.

The Regional Board’s New ESLs and Regulatory Approach to Test, Investigate, and Clean Up PFAS Contamination

To facilitate these PFAS investigations and complement the State Board’s work, the Regional Board on May 27 issued two memoranda: (1) a technical memorandum setting forth interim final ESLs for PFOS and PFOA, along with the scientific rationale for those ESLs, and (2) a transmittal memorandum, explaining the regulatory approach to be implemented by the Regional Board, using those ESLs. The Regional Board intends to formally incorporate the new ESLs in its next major ESL guidance update, tentatively set for 2021.

The new ESLs will become a key driver for assessment of sites with PFAS contamination, not only within the Regional Board’s jurisdiction, but across the state. ESLs are risk-based concentrations of chemicals against which environmental sampling data collected at contaminated sites can be compared. Generally, the Regional Board considers sites with concentrations below the relevant ESLs to not pose a significant threat to human health or the environment. Where ESLs are exceeded, the site may pose a significant threat, and further investigation is warranted (and often required) to assess the threat and determine whether cleanup is necessary or appropriate. Although both regulatory agencies and private parties can use alternative approaches to assess human health and ecological risk, particularly where site-specific factors warrant it, ESLs are the most commonly used thresholds in California for making initial decisions about whether a site is deemed ‘contaminated’ at a level requiring action. For this reason, ESLs play an important role in a number of contexts, including due diligence for property acquisitions, use of groundwater as drinking water (in the absence of MCLs), and investigations by environmental regulatory agencies such as the Regional Board…”