California’s PFAS Journey
There has been considerable discussion about potential health and environmental risks from a family of chemicals generally known as per- and poly-fluoroalkyl substances (PFAS). There are many family members and from a risk standpoint, what applies for one, does not necessarily apply to another. However, the PFAS acronym is generally used to mean the entire list of associated substances. What makes PFAS unusual and difficult to deal with is that they do not degrade easily and thus last much longer in the environment than many other common contaminants, earning them the ‘Forever Chemicals’ moniker.
According to the Environmental Protection Agency (EPA), PFAS are said to be associated with various health concerns. These include increased risk of kidney or testicular cancer, changes in liver enzymes, increased risk of high blood pressure or pre-eclampsia in pregnant women, increased cholesterol levels, and decreased vaccine response in children. However, an established cause and effect relationship between PFAS and the health issues referenced above has not yet been made.
PFAS are man-made chemicals that have been used in industry and in many consumer products since the 1940s, such as water-repellent material for clothing, stain-resistant fabrics, carpets, cosmetics, firefighting foams, and products that resist grease, water, and oil. While production in the United States of most PFAS family members has been phased out, their somewhat ubiquitous nature has led to the discovery of contamination of soil, water, and air all over California.
Exposure to PFAS can come from many sources. The EPA states that the greatest potential source is drinking water, but human exposure may also come from eating foods that were packaged in materials containing PFAS, eating fish caught from contaminated waters, and through use of many consumer products. Babies born to mothers exposed to PFAS can be exposed during pregnancy and while breastfeeding. Various studies have opined that only a small amount of PFAS can get into your body through your skin. Therefore, the EPA believes that showering and bathing in water containing PFAS should not increase exposure, and washing dishes in water containing PFAS should not increase exposure.
In response to PFAS concerns, California has considered a PFAS limit in drinking water at 0.5 parts per billion. This is based on a toxicological review and critical effects determination of exposure by the Office of Environmental Health Hazard Assessment (OEHHA). OEHHA is the lead state agency for the assessment of health risks posed by environmental contaminants in the state.
OEHHA’s assessment does not have any legal effect per se, but rather, it is a recommendation that is followed by many governmental agencies. Of most significance is that OEHHA’s findings were actually developed for the California State Water Recourses Control Board (SWRCB) to establish a Notification Level (NL) which would be required to be followed by any water agency in the State. Within the SWRCB is the Division of Drinking Water (DDW) which, as its name implies, deals with drinking water. NLs are health-based advisory levels that are established for chemicals for which there are no formal regulatory standards (Maximum Contaminant Levels, or MCLs). The information gathered for an NL often forms part of the determination of an MCL.
Previously, when NLs were exceeded, an impacted drinking water utility was required to notify the local governing body, such as a city council, where the users of affected drinking water reside. However, in January 2020, Assembly Bill 756 went into effect which changed this process. As of January 2020, municipalities are required to notify consumers of PFAS above the NL and not just the local governing body.
If the NL is exceeded, SWRCB recommends, but cannot require, that the utility also inform its customers and consumers about the presence of the contaminant and the health concerns associated with its exposure. There are also RL at which SWRCB recommends the drinking water system take the affected water source out of service. These levels usually range from 10 to 100 times the NL, depending on the chemical. Notwithstanding that these are only notices and recommendations, many water utilities self-impose these values on their drinking water for the protection of the public.
SWRCB has used the OEHHA findings and performed their own analysis of Perfluorooctanoic acid (PFOA) and in early 2020, the SWRCB issued a Response Level (RL) for PFOS (one of the families of PFAS) at 40 parts per trillion which was a reduction from the previous 70 part per trillion. For perspective, one part per trillion is approximately equal to one drop in an Olympic size pool. SWRCB also established an RL of 10 parts per trillion for another family member, PFOA. At the same time, the SWRCB requested OEHHA to evaluate and recommend NLs for more individual PFAS compounds.
The SWRCB ordered drinking water systems to collect samples of their source water and report the findings to the Board. This sampling process is ongoing.
Current PFAS remediation processes consist of granular activated carbon treatment and powder activated charcoal, which permits chemicals like PFAS to stick to small pieces of carbon as water passes through them; ion exchange resin which are small beads (called resins) made of hydrocarbons that work like magnets allowing the chemicals passing through them to stick to the resin, which is then removed; high-pressure membranes, such as nanofiltration or reverse osmosis, which is a process where water is pushed through a membrane with small pores. The membrane acts like a wall that can stop chemicals and particles from passing into drinking water. Certainly, other processes will be developed soon.
We can expect the various agencies in California to make their own determinations as to what levels of PFAS are acceptable for them. Each agency has a different mission and therefore looks at PFAS differently. For example, California Department of Resources Recycling and Recovery (CalRecycle) has proposed a 100 parts per million for food packaging Added to this, each member of the PFAS family may be investigated separately to determine the appropriate levels to meet the mission of that particular agency.
Eventually, for drinking water, an MCL will be approved. Currently, there is no estimate of time as to when that will be. In setting an MCL, one of the issues that needs to be investigated is the cost and efficiency of current remediation. However, in California, lower limits have been recommended and the processes of remediation likely will have to “catch up.” This is particularly difficult to deal with as each member of the PFAS family may have to be investigated separately to determine the mission-specific NL or RL.
We suggest that if you need more information please go to these sites or contact Steven Hoch of Clark Hill’s Environment, Energy & Natural Resources team for assistance: