September 6, 2019

California Authorizes Expanded Monitoring for and Notification of PFAS

Holland & Knight Energy and Natural Resources Blog
Robert P. Frank

On July 31, 2019, California enacted Assembly Bill No. 756 (AB 756). The law adds Section 116378 to the California Health and Safety Code (the Health and Safety Code) and becomes effective on January 1, 2020. Before AB 756, California law authorized the State Water Resources Control Board (the Water Board) to issue monitoring orders to one public water system at a time and required a public water system to notify its governing body if monitoring found a contaminant at certain levels. AB 756 grants the Water Board the authority to order any public water system or group of public water systems to monitor for per- and polyfluororalkyl substances (collectively, PFAS). The law does not limit a Water Board’s authority to order monitoring to any specific group of substances within the universe of PFAS and instead authorizes orders which can require monitoring for any PFAS.

Under Health and Safety Code § 116455, a law which predates enactment of AB 756, the Water Board may set a "notification level" and a "response level" for a contaminant.  For contaminants in drinking water for which a maximum contaminant level has not been established, the notification level is a nonregulatory, health-based advisory level at which, based on available scientific information, a significant health risk does not exist but notification to the governing body of a public water system is warranted. A "response level" for a contaminant is that concentration in drinking water delivered for human consumption at which the Water Board recommends that a public water system take additional steps, beyond the notification Section 116455 requires, to reduce public exposure to the contaminant. As the Water Board’s Division of Drinking Water (DDW) states, the response levels is the level "at which the DDW recommends removal of a drinking water source from service or having treatment provided…"  See California Water Boards Fact Sheet.

Health and Safety Code § 116455 had established requirements both for when a public water system must notify its governing body that a contaminant has been detected and for what that notification must contain. Now, when a response level has been established for a PFAS, AB 756 requires that, “where detected levels of a substance exceed the response level,” a community water system or nontransient noncommunity public water system must within 30 days of the confirmed detection either take the water source where detected levels exceed the response level out of use or provide public notification of the confirmed detection. AB 756 specifies how notification must be given to the public and requires that the notice required of PFAS contamination above a response level be given directly to each customer of the water system and not, as previous law had required, only to the governing body of the system. 

In July 2018, before AB 756 was enacted, the Water Board established notification and response levels for two particular PFAS: perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). The notification level for PFOA is set at 14 parts per trillion (ppt).  For PFOS, the notification level is 13 ppt. The Water Board set the response level for PFOA and PFOS as a total concentration of 70 ppt for both contaminants -- a level the Water Board notes is approximately five times the notification level for each contaminant separately.

Analytical results of any monitoring undertaken pursuant to an order issued under AB 756 must be submitted to the Water Board electronically as the Water Board may direct in its order.  If such monitoring results in a "confirmed detection" of contamination by any PFAS, a community water system or nontransient noncommunity water system must report that detection in the water system’s annual consumer confidence report. AB 756 leaves the term "confirmed detection" undefined, but the DDW appears to anticipates that a detection of a PFAS may be confirmed as it is under Health and Safety Code § 116455. If the Water Board’s DDW follows the practice used for orders issued before AB 756 was enacted, only a listing of the sources required to be sampled, and not the actual orders requiring sampling, will appear on the DDW’s webpage. See California Water Boards Fact Sheet.

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