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VIDEO. From the Sewer Authority Mid-Coastside (SAM) Director’s meeting on Monday, February 28th, 2022 at 7:00pm by Zoom.

SAM attorney, Jeremy Jungreis, presents.

 

 

 

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What are PFAS or “Forever Chemicals” and Why Should We Care on the Coastside?

 

ARTICLE. “DARK WATERS” COME TO ORANGE COUNTY by Jeremy N. Jungreis and Jason Dadakis

Every generation seems to face a new challenge in cleaning up or remediating  chemicals previously believed to be safe.  In the past, it was Polychlorinated Biphenyls (PCBs) routinely sprayed on dirt roads to suppress dust, or volatile organic com pounds (solvents or VOCs) ubiquitous in dry  cleaning and other degreasing operations that  leaked into the groundwater. Both chemicals  were allegedly linked to increased cancer risk  and other adverse health effects through a variety of exposure pathways—including drink ing water.

Many of the VOC and PCB sites  have now been cleaned up, but not without  expensive litigation spanning decades. Now,  as chronicled in the recent motion picture  Dark Waters, there is growing concern about  a new class of chemicals with the potential to  adversely impact human health and the environment in Orange County. Per- and polyfluoroalkyl substances, abbreviated as PFAS, and  nicknamed the “forever chemicals” because  of their resiliency in the environment, are  now receiving extraordinary regulatory scrutiny—spurring strict new state regulations and  spawning litigation throughout the country.

 

What are PFAS, and Why Should I Care?

Perfluorooctanoic acid (PFOA) and per fluorooctane sulfonate (PFOS) are the two PFAS in the regulatory crosshairs of the State  of California and the Federal Environmental  Protection Agency (EPA). However, there are  thousands of unique PFAS that have entered  the stream of commerce in the United States,  and by extension, the environment, over the  last fifty years.

What makes PFAS cleanup  such a difficult regulatory problem is that  PFAS are literally everywhere. They are in  Scotch Guard, GoreTex, Teflon, and count less other household products. Moreover, recent evidence suggests that our own bodies  may have become a source of PFAS discharges to the environment—with PFAS residuals  showing up in wastewater treatment plants  throughout Southern California.

Recent studies suggest prolonged exposure  to some types of PFAS, and in particular,  PFOA and PFOS, may be associated with  potential adverse effects on human health.  According to the EPA, there are associations  between PFOA exposure and high cholesterol, increased liver enzymes, decreased vaccination response, thyroid disorders, pregnancy induced hypertension and preeclampsia, and  testicular and kidney cancer. The EPA indicates there is also possible association between PFOS and high cholesterol, decreases in fertility, and decreased birth weights. 

PFAS chemicals have been detected  in water sources throughout the Unit ed States, but for reasons unique  and complex, PFAS are particularly  prevalent in the inland portion of the  Orange County Groundwater Basin (OC  Basin) underlying much of northern and central Orange County. The result is a highly  dynamic situation. Water agencies within  the OC Basin have received strong recommendations from state regulators to shut  down—until such time as expensive treatment can be designed and implemented—up  to seventy-one separate wells, amounting to  temporary curtailment of a large portion of  northern and central Orange County’s water  supply. These shut downs are set to occur during the first half of 2020. Meanwhile, litigation against PFAS manufacturers, and other  parties responsible for releasing PFAS into the  environment, is on the near horizon, along  with new legislation, and possible admin istrative challenges to actions taken by the  State Water Resources Control Board Division of Drinking Water (DDW).

 

How Did We Get Here? 

As the movie Dark Waters chronicles, concerns over the safety of PFAS are not new—at  least in parts of the country where PFAS is manufactured. According to the allegations of plaintiffs in West Virginia and Ohio, manufacturers of PFOS and PFOA have known about the potential dangers of PFAS for a long period of time, and they allegedly tried to  cover it up. 

In 2017, DuPont and Chemours  agreed to pay $671 million to resolve multi-district litigation in Ohio that alleged that  DuPont improperly dumped cancer-causing  chemicals, thereby harming people exposed to the chemicals through drinking water and other exposure pathways.

In 2018, 3M reached an $850 million deal with the State of  Minnesota settling litigation that alleged 3M  knowingly dumped chemicals into ground water, impacting local wildlife and posing health risks to local water supplies.

Revelations from the litigation in the Midwest spurred the EPA to action.

In May 2016,  the EPA released a Lifetime Health Advisory of a combined 70 parts per trillion (ppt) for  PFOS and PFOA in drinking water.

In July 2018, DDW, which directly regulates California public water systems, established interim  drinking water Notification Levels (NL) and Response Levels (RL) for PFOA and PFOS, based on recommendations from the California Office of Environmental Health Hazard  Assessment (OEHHA). Results above the  NL required water agencies to notify their  local governing body (i.e., city council) and the governing bodies of other local agencies.  DDW also set an RL for PFOS and PFOA at the same level as the EPA advisory.

In April 2019, DDW sent monitoring  orders to more than 200 public water systems  across California, including many in Orange  County, requiring suppliers to test for PFOA  and PFOS. The list of monitoring orders  included 612 drinking water supply wells selected on the basis of proximity to landfills, municipal airports, and locations with past  detections of PFAS. 

In August 2019, DDW announced a new Notification Level for PFOA and PFOS, 5.1  parts per trillion (ppt) and 6.5 ppt, respectively, based on new recommendations from  OEHHA. The RL for PFOA and PFOS would temporarily remain at the EPA level of 70 ppt  for both contaminants. However, DDW indicated informally it was likely to revise the RLs  to levels significantly below EPA advisory levels, 40 ppt for PFOS and 10 ppt for PFOA.

These  suggested low levels would cause a significant  number of wells within inland north-central  Orange County to be in non-compliance with DDW’s proposed standard without any kind of public regulatory process.

Meanwhile, the  California legislature, not content with allowing regulation of PFAS and PFOA to proceed via the normal regulatory process, passed AB  756. AB 756 requires water agencies who confirm PFAS in a drinking water source above the a designated RL, to either remove the source  from service within thirty days or engage in an extensive public notification campaign, in multiple languages, and in print, electronic, and  newspaper forums, that ensures every single  customer of the water agency receives notice  of the exceedance, the possible health effects of  PFAS, and the agency’s decision not to take the  drinking water source out of service. 

AB 756 took effect on January 1, 2020. The new RLs for PFOS and PFOA were not far behind. DDW released them, without formal regulatory process or public hearing, on February 6, 2020.

As anticipated, the RL for  PFOA was set at 10 ppt, and the RL for PFOS  at 40.

In the same advisory, DDW indicated it was considering establishing NLs and RLs for seven other classes of PFAS. DDW  concurrently issued guidance indicating AB 756’s public notification requirements would  apply prospectively via a running annual  average of quarterly samples, providing additional time for local agencies with PFOA or PFOS detections to come into compliance without triggering AB 756’s public notification requirements.

 

A De Facto Maximum Contaminant Level

The magnitude of the RL for PFOA in Orange County is significant—42 wells tested to date exceed the RL with approximately 30 more projected to exceed the new RL  should testing be expanded. This fact, combined with the dearth of scientific evidence  supporting the lower RLs, and the extremely  stringent notification requirements triggered by AB 756, has led some attorneys to contend that DDW has engaged in the setting of a de facto maximum contaminant level (MCL) that violates California administrative law. The setting of an enforceable MCL is a  process that ordinarily requires significant  scientific (epidemiological and toxicological) study, and a thorough cost/benefit analysis.  New Hampshire, seeking to be one of the  first states to set an enforceable MCL for  PFOS and PFOA (and two other PFAS com pounds), learned this the hard way when their  MCL was enjoined by a New Hampshire  state court judge on December 31, 2019.18 The court in New Hampshire enjoined  enforcement of the MCL, which took effect  on September 30, 2019, putting on hold New Hampshire’s 12 ppt for PFOA and 14 ppt for  PFOS standards. 

Back in California, recent actions by DDW  to set the revised RL for PFOA and PFOS raise  some of the same concerns as those expressed  by water agencies in New Hampshire, namely  an overly rapid process, inadequate public  participation opportunities, and an unwillingness by regulators to follow the procedures  set forth in the Federal Safe Drinking Water  Act (SDWA) for setting enforceable drinking  water standards. California regulators would  likely respond to that criticism by contending that the RLs are not mandatory and that  the law, as currently written, does not require  public participation or comment prior to RL  implementation; RLs are, DDW would likely  argue, just very strong suggestions. 

It remains to be seen whether formal challenges will be filed to the recently promulgated RLs. However, in the meantime, agencies such as the Orange County Water District  (OCWD), which manages the OC Basin, are working to implement technical and engineering solutions that can rapidly bring ground water pumping lost to PFAS contamination  back online. OCWD is also working with  other interested agencies and the legislature to  develop a regulatory process for the setting of RLs that provides greater predictability, scien tific rigor, and public participation as a formal  part of any future RL development.  

 

Tort Suits by Local Governments and  States to Recover Damages for Injuries  to Drinking Water 

Litigation against PFAS manufacturers has exploded during the last year, with thousands of claims now pending against PFAS manufacturers in multi-district litigation currently pending in the Federal District Court for the District of South Carolina, as well as in  various state court actions around the United  States. State attorneys general, in states such as New Hampshire, Vermont, New York,  Michigan, and New Jersey, have become  involved too—filing lawsuits against PFAS  manufacturers and alleging billions of dollars in damages for personal injury, natural  resource, and property damage. 

The manufacturers, for their part, contend PFOS and  PFOA are not shown to harm human health,  and that any release to the environment was consistent with federal law and, in some cases, military specification. How such litigation  is resolved remains to be seen, but the recent large settlements in Ohio and Minnesota  suggest there is potentially willingness on the  part of at least some manufacturers to limit exposure through settlement—particularly  where the plaintiffs can demonstrate direct  discharges by a manufacturing facility that  caused natural resource or aquifer damage. 

PFAS, and the statutory, regulatory, and litigation actions it has catalyzed, promises to be  an issue relevant to Orange County residents  (and their lawyers) for the foreseeable future

 

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“DARK WATERS” COME TO ORANGE COUNTY

by Jeremy N. Jungreis and Jason Dadakis

from the Orange County Lawyer

Jeremy is the Legal Counsel for Sewer Authority Mid-Coastside (SAM).

Link includes bibliography.

 

https://www.rutan.com/wp-content/uploads/2020/05/OC-Lawyer-Reprint-May-2020-Jungreis-Dadakis.pdf

 

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Sewer Authority Mid-Coastside (SAM) Meetings ~ 2nd & 4th Mondays @ 7:00pm