Left to right: Jeffrey Dintzer and Nathaniel Johnson of Alston & Bird. Left to right: Jeffrey Dintzer and Nathaniel Johnson of Alston & Bird.

It has been roughly three months since a significant set of regulations became enforceable in California in November 2018. Pursuant to Proposition 65, the state regulator—the California Office of Environmental Health Hazard Assessment (OEHHA)—formally added perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) to “the list of chemicals known to the state to cause reproductive toxicity (developmental endpoint).” Now, companies doing business in California with 10 or more employees are required to provide a “clear and reasonable” warning before knowingly exposing anyone to products with those chemicals. Liability under Proposition 65, often through private lawsuits, is notoriously unpredictable and can viably threaten statewide business operations.

As we detailed in our prior article on November 20, 2018, the decision to list PFOA and PFOS on Proposition 65 could have serious consequences for a wide range of businesses in California. PFOA and PFOS are two of the most common forms of the emerging contaminants known as perfluoroalkyl and polyfluoroalkyl substances (PFAS), which have been used for decades in a myriad of industries, such as firefighting at industrial and military facilities.

Despite the real threat posed by its listing decision, OEHHA still has not provided meaningful guidance to businesses on how to avoid liability—other than engaging in cost-prohibitive, case-by-case requests for exception under the statute. We appreciate the response provided by OEHHA on December 10, 2018; yet, we are concerned that the response may be misleading, especially because it lacks any details of OEHHA’s timetable or plans to provide guidance on PFOA and PFOS.

Notably, OEHHA claims to be a friend to business in California. Yet, for years, OEHHA has used its risk assessment responsibility by reporting risks from exposures that are disconnected from the science, and usually mirror verifiable detection limits at the time the risk assessments are completed. In other words, OEHAA simply sets the acceptable risk to chemical exposure at or near our ability to detect the chemical, as opposed to levels that represent risks to human health or the environment based on actual scientific studies by credible sources. Unfortunately, this has the consequence of forcing businesses to waste ungodly amounts of money treating media (such as groundwater) to levels that could not possibly harm anyone.

The story with PFAS will be no different—OEHHA’s claims to be industry-friendly in this instance are dubious at best.

To advance its claim, OEHHA points out that industry is only responsible for “knowing and intentional exposures” under Proposition 65. This may be true, but businesses should know at this point whether their products contain PFOA or PFOS, since OEHHA has listed those chemicals for Proposition 65 purposes. Ironically, OEHHA appears to suggest that businesses can avoid liability by not knowing whether their products, or even the carpeting in their offices, contain PFOA or PFOS. We doubt OEHHA is telling businesses to stick their heads in the sand, though it is hard to read their explanation another way.

OEHHA then reiterates that it is the responsibility of businesses to determine whether a Proposition 65 warning is required. Again, this may be true, but it does little to address the real risk to businesses caused by listing PFOA and PFOS. As of this publication, OEHHA still has not published safe harbor levels for PFOA or PFOS. OEHHA suggests that businesses should use their regulations to calculate safe harbor levels on their own, though this suggestion seems unrealistic given that OEHHA has not been able to determine safe harbor levels after months (possibly years) of effort.

At the same time, we are not suggesting that OEHHA is solely responsible for the risk to businesses posed by these listing decisions. In fact, when OEHHA decided to list PFOA and PFOS, it did so on the basis of federal regulations and science developed primarily by the U.S. Environmental Protection Agency (EPA). At the time, it seemed like EPA guidance was on the horizon, including drinking water limits for PFOA and PFOS. While the EPA has not acted as quickly as regulators and regulated parties might prefer, it recently announced its own nationwide “Action Plan” to address PFAS generally, including PFOA and PFOS.

Now that the EPA appears ready to take action, OEHHA no longer has any excuse to wait. With the warning requirements for PFOA and PFOS in place, it is incumbent on OEHHA to set reasonable safe harbor levels sufficiently above detection limits—at least within arm’s reach of actual risk—to provide security to businesses and other state regulators. The science exists to set safe harbor levels that are actually business-friendly, as OEHHA acknowledged in its response. Acknowledgement is a helpful start, though far more needs to be done in the interest of regulatory certainty.

 

Jeffrey Dintzer is a partner and Nathaniel Johnson is a senior associate in the Environment, Land Use & Natural Resources Group at Alston & Bird.