Latest California State Water Board Investigative Order for PFAS Targets Bulk Fuel Storage Terminals and Refineries

Environmental Law  

March 29, 2021

Last week, the California State Water Resources Control Board (State Water Board) officially released an order (the Order) to investigate and sample for per- and polyfluoroalkyl substances (PFAS) at over 160 bulk fuel storage terminals and refineries throughout California. The State Water Board’s Order is the latest action in a series of investigative orders over the last two years to study and identify industrial and municipal sources of PFAS in California including at airports, landfills, manufacturing facilities, chrome platers, and wastewater treatment facilities.

The State Water Board’s Order identifies bulk fuel storage terminals and refineries as potential locations of PFAS for a number of reasons. PFAS are highly fluorinated manmade compounds that are resistant to heat, water and oil. PFAS have been used in fire suppression foams known as aqueous film-forming foams (AFFF), which are likely to be stored and used at refineries and bulk fuel storage facilities for fire suppression, fire training, and flammable vapor suppression. Moreover, PFAS can be used as an additive in a variety of oil collection and storage processes to enhance recovery; reduce evaporation loss, fires, and corrosion; and improve safety for various pipeline operations. Further, PFAS compounds are routinely added to different equipment components such as fuel system seals, hoses, and gaskets to improve reliability and safety.

Among other requirements, the Order requires the facilities identified on Attachment 1 to the Order to submit a one-time preliminary site investigation work plan to the appropriate Regional Water Board listed for each facility that: (1) identifies PFAS-containing materials at the facility; (2) identifies the areas where PFAS-containing materials are stored, used, and/or disposed; (3) details the various potential pathways (current and historic) for discharge of PFAS from the facility and the nature of potential PFAS contamination in the subsurface soil, groundwater, and stormwater; and (4) describes a proposed sampling plan. The Regional Water Board will review and comment on the submitted work plan to make sure that the plan is complete and to verify that the facility’s proposed sample locations, which can be based on existing groundwater monitoring wells and other sample locations, are appropriate.

The Order includes extensive details as well as guidance on sampling and laboratory analysis for 31 PFAS compounds and the reporting of the data. The one-time preliminary site investigation work plan must be submitted no later than June 2, 2021, but the Order also allows facilities to request an extension for good cause. The Regional Water Board’s approval of extension requests is discretionary, but could potentially include consultant or subcontractor delays. Once the work plan is approved, the facility’s final report and all sample results must be submitted no later than 90 days following the receipt of the last laboratory analytical report. Facilities subject to the State Water Board’s latest investigation order should contact their consultants and seek advice from legal counsel as soon as possible on strategic considerations and compliance with the Order, particularly given the high demand for environmental consulting, laboratory and related services related to this Order and other PFAS orders requiring testing that is still ongoing.

As we previously reported, in August 2019 the State Water Board lowered the drinking water notification levels for perfluorooctane sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA)—two common PFAS compounds—from 13 parts per trillion (ppt) to 6.5 ppt, and 14 ppt to 5.1 ppt. Early last year, the State Water Board also lowered the single health advisory response levels for PFOA and PFOS from 70 ppt combined, to 10 ppt for PFOA and 40 ppt for PFOS based on a running four quarter average. The Office of Environmental Health Hazard Assessment (OEHAA) is currently working on draft public health goals (PHGs) for PFOS and PFOA, an important step in the process to establish a drinking water standard (MCL) that could eventually be used as a groundwater remediation goal. Finally, on March 5, 2021, the State Water Board issued a notification level of 0.5 parts per billion (ppb), and a response level of 5 ppb, for perfluorobutane sulfonic acid (PFBS), which is a type of PFAS compound that is commonly used as a replacement compound for PFOS.

For additional information about the State Water Board’s efforts to study and investigate PFAS, please contact us.