State Water Board Orders Investigations at Bulk Fuel Facilities and Refineries

Recent State Water Resources Control Board Order Directs Bulk Fuel Storage Terminals and Refineries to Investigate Potential Per- and Polyfluoroalkyl Substances (PFAS) Contamination (Order WQ 2021-0006-DWQ)

April 2021

On March 12, 2021, the State Water Resources Control Board (“State Water Board”) officially released an order to investigate potential per- and polyfluoroalkyl substances (“PFAS”) contamination at over 160 bulk fuel storage terminals and refineries throughout the state of California. State Water Board Order WQ 2021-0006-DWQ (“Order”) requires named facilities to submit a preliminary site investigation work plan to the appropriate Regional Water Board for review and comment. The Regional Water Board will assess the facility’s submitted work plan and oversee the investigation.

What are PFAS?

PFAS are a family of human-made chemicals that are found in a wide range of products used by consumers and industry. The most widely studied contaminants of the PFAS family are perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonate (“PFOS”). Many PFAS are resistant to grease, oil, water, and heat. For this reason, beginning in the 1940’s, PFAS have been used in a variety of applications including in stain- and water-resistant fabrics and carpeting, cleaning products, paints, and fire-fighting foams. The widespread use of PFAS and their ability to remain intact in the environment means that over time, PFAS levels from past and current uses can result in increasing levels of environmental contamination. Exposure through drinking water has become an increasing concern due to the tendency of PFAS to accumulate in groundwater.

Recent Interest in PFAS

PFAS have been hotly discussed by regulatory agencies at both the state and federal level. Since 2012, there has been a statewide effort in California to evaluate PFAS impacts in groundwater and surface water. The State Water Board’s Order is only one recent action in a series of investigative orders over the last several years to target industrial and municipal facilities alleged to be sources of PFAS in California, including airports, landfills, manufacturing facilities, chrome plate facilities, and wastewater treatment facilities. For more information on the statewide effort to evaluate PFAS in groundwater and surface water impacts, visit the California Water Boards Website.

Agencies at the federal level have similarly turned their attention to PFAS recently, in an effort to reduce environmental accumulation. The United States Environmental Protection Agency’s (“EPA”) Draft Interim Recommendations to Address Groundwater Contaminated with Perfluorooctanoic Acid and Perfluorooctanesulfonate, released in April 2019, suggested setting a remedial screening level at 40 parts per trillion for PFOA and PFOS individually. For more information on these advisories, visit the EPA Website.

Penalties for Noncompliance

Each named party in the Order has a deadline for which a response is required. Water Code section 13268 provides that failure to submit required information by the specified compliance date may result in civil liability. The cost of noncompliance may be civil penalties of up to $5,000 for each day of violation. Violations of Water Code section 13383 may result in additional civil penalties of up to $25,000 for each day of violation.

Hartman King PC Can Help

Recent governmental interest in PFAS has sparked a wave of environmental and tort litigation across the nation. If your facility received an Order from the State Water Board, Hartman King PC can help. Our team has extensive experience in state and federal regulatory, litigation, and technical issues related to PFAS enforcement defense, and has been invited to present to a wide range of industry groups on enforcement defense matters and PFAS-related subject areas. In September 2020, Jennifer Hartman King was selected to speak at the 36th Annual Environmental Training Symposium and Conference, presented by the Industrial Environmental Association and the California Manufacturers and Technology Association. There, Ms. Hartman King shared her expertise pertaining to the recent regulation and enforcement developments involving PFAS, and also provided insight on how to best manage the complex reporting requirements of an Order, when you find yourself on the receiving end of one.

We actively represent numerous clients in PFAS litigation and advise on regulatory compliance and clean-up. For more information on the State Water Board’s Order and how we can help, please contact us at: [email protected].

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