New Legislation Gives the California State Water Resources Control Board Expanded Authority to Order Testing for PFAS

Environmental Law  

August 12, 2019

The State Water Resources Control Board (State Water Board) will have new, expansive authority to order public water systems to monitor for per- and polyfluoroalkyl substances (PFAS) under a new law, commonly referred to as AB 756 (C. Garcia) that Governor Gavin Newsom signed on July 31, 2019.

PFAS are highly fluorinated manmade compounds that are resistant to heat, water and oil. They are used in fire suppression foams and in a wide range of products designed to be waterproof, stain‑resistant or non‑stick, such as carpets, furniture, cookware, clothing and food packaging. PFAS have also been found in drinking water supplies and are reported to have a variety of adverse health effects.

As we previously reported, in March, the State Water Board announced it would be issuing orders to study and sample for PFAS in drinking water and groundwater. The State Water Board’s plan includes phased orders requiring sampling by a variety of potential industrial and municipal sources of PFAS, including airports, landfills, manufacturing facilities, bulk terminals, and wastewater treatment facilities.

In addition, in 2018, the State Water Board’s Division of Drinking Water established notification levels for perfluoroctane sulfonate (PFOS) at 13 parts per trillion (ppt), perfluorooctanoic acid (PFOA) at 14 ppt, and a single health advisory response level of 70 ppt.  PFOS and PFOA are two common PFAS compounds. Furthermore, the California Department of Toxics Substance Control and various regional water boards have required sampling for PFAS, mostly at active or inactive military facilities on a site-by-site basis.

AB 756 marks the California Legislature and Governor Newsom’s first action related to PFAS. AB 756 adds Section 116378 to the California Health and Safety Code. Section 116378 (effective January 1, 2020) authorizes the State Water Board to order a public water system to monitor for PFAS in accordance with conditions set by the Board. 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. Further, where detected levels of PFAS exceed the 70 ppt response level, the water system must take the water source out of use or provide public notification within 30 days of the confirmed detection. The public notification procedures under section 116378 set forth a variety of requirements for providing sufficient public notice, including requiring community water systems to provide notice by mail and e-mail to each water system customer.

AB 756 is likely only the beginning of the California Legislature’s swell of bills aimed at regulating PFAS. Once the results of the State Water Board’s ordered investigations into PFAS in drinking water and groundwater are in, it is likely that the California Legislature, Governor Newsom and various state regulatory agencies will continue to increase their focus on PFAS in California with new laws and regulations. Regardless, water systems will have a short time to plan for compliance with AB 756, as the law becomes effective on January 1 of next year.

For questions about PFAS compliance or AB 756, please contact us.