How Owners Should Prepare for PFAS Investigation

The State Water Board has announced plans to investigate the presence of PFAS chemicals in facilities throughout the state. The phased investigation plan will review more than 1,000 facilities and meeting the standards will not be easy. Facilities that show a presence of PFAS chemicals will need to submit results to the state. For properties that show a PFAS presence in ground or drinking water will require additional tests. Failure to comply could result in fines ranging from $5,000 to $25,000 per day for the violation.

“Compliance is not simple,” Kamran Javandel, partner at Allen Matkins, tells GlobeSt.com. “There are several challenges just in terms of obtaining adequate analytical testing. The State Board will issue investigative orders to potential source facilities—airports, landfills, refineries, bulk terminals, secondary manufacturers—under the authority of California Water Code Section 13267. These orders will give businesses 30 days to respond to questionnaires regarding their use, or for landfills, acceptance, of PFAS-containing materials, and 60 days to submit work plans for PFAS testing.”

At the moment, the State has only approved one analytical testing method, which could prove to be an additional challenge in detecting the presence of PFAS. “This approved method is still evolving, is only approved for a limited number of PFAS compounds, and is only approved for analysis of drinking water—not the groundwater that will presumably need to be analyzed for source facilities,” says Javandel. “Moreover, many laboratories are not yet equipped to perform the approved analytical method. Laboratory staff that have seen one of the State Board’s orders report that it requires testing for 23 PFAS chemicals and “recommends” testing for more—a perplexing challenge given that there is no approved analytical method for many of those compounds.” When the testing plan is approved, owners with selected properties will have 90 days to test for PFAS and submit the results.

The state is investigating more than 1,000 properties, and if an owner believes it might be investigated, there are ways to prepare. Preparation starts with reviewing use of PFAS-containing materials. “Given that it may need to respond promptly to a questionnaire about its PFAS use, it should assemble and review the information available to it about the use of PFAS-containing materials at its facility,” Vaneeta Chintamaneni, associate at Allen Matkins, tells GlobeSt.com.

Owners will also need to assemble a team of PFAS experienced professionals that can tackle the task of compliance. “Investigation of PFAS is complex and unsettled in many areas,” adds Chintamaneni. “Given that regulators are concerned with PFAS concentrations in the parts per trillion range, and the fact that PFAS are so prevalent in consumer products, there are significant risks of cross-contamination of samples. Thus, it is important to engage on-site professionals familiar with sampling protocol that will prevent ‘false positives.’ Moreover, as noted above, there are significant challenges in finding a laboratory that can perform the necessary testing and in obtaining the right analysis to comply with the State Board’s orders.”