The California Environmental Quality Act (CEQA) is crucial in assessing and mitigating environmental risks resulting from discretionary projects. How PFAS will impact the CEQA landscape depends on a variety of shifting factors.
Per- and polyfluoroalkyl substances (PFAS) are man-made chemicals increasingly difficult to avoid in everyday life. Found everywhere from the air to humans to groundwater, PFAS chemicals are frequently in the news – and on the regulatory radar.
Developers and other project stakeholders may question how PFAS will be handled under CEQA. As the landscape continues to shift and specifics remain unclear it seems inevitable that CEQA will necessitate some form of PFAS assessment and planning.
In fact, that’s exactly what CEQA was created to do.
CEQA Overview
CEQA was passed in 1970 and signed into law by then-Governor Ronald Reagan, shortly after the U.S. passed the National Environmental Policy Act (NEPA). CEQA requires California agencies to follow a protocol of analysis and public disclosure of environmental impacts of proposed projects, as well as to determine and apply mitigation methods.
Under CEQA, agencies are accountable to:
- Uncover and report potential environmental effects of proposed projects.
- Identify methods to avoid or significantly reduce negative environmental effects.
- Prevent avoidable damage to the environment using alternative or mitigative measures when possible.
- Disclose findings to the public.
CEQA applies to all discretionary projects proposed by a California public agency, as well as private projects requiring discretionary government approval. A discretionary project is one that requires judgment and/or deliberation by a public agency to determine project approval or if a permit may be issued.
Common discretionary decisions include a conditional permit issuance, delaying demolition to explore alternatives, or reviewing project design. CEQA also applies to decisions that could indirectly lead to changes in local codes, policies, and existing plans.
CEQA and Groundwater
CEQA is a crucial tool in restricting environmental impacts, including groundwater resources. Groundwater is a valuable natural resource that provides drinking water in many communities, as well as protects ecosystems.
Groundwater is also a common location for PFAS contamination, as the chemicals can enter the water supply through drains in kitchens and bathrooms, as well as through vapor intrusion. As CEQA requires an evaluation for potential environmental risks in groundwater, PFAS contamination may affect the results.
The significance of the impact will vary based on circumstances and our evolving understanding of PFAS. Depending on factors like project location, scale, and effects on human health, finding PFAS in the groundwater supply may change the outcome of an Environmental Impact Report (EIR).
Groundwater evaluation is a key component of CEQA review , including a project’s potential to affect groundwater quality, quantity, and recharge. If PFAS is present in groundwater , CEQA will include disclosure of the current groundwater supply status as well as plans to remediate the contamination and the resulting effects water availability to support projects.
Effects of PFAS Regulation
All predictions on how CEQA will regulate PFAS contamination depend largely on one looming factor: If – or more likely, how – PFAS will be regulated. Currently, there are only proposals regarding various PFAS compounds, and very little approved legislation.
PFAS as Hazardous Substances
The most significant action to date is an Environmental Protection Agency (EPA) proposal that would designate two PFAS chemicals as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
The proposal was finalized in October 2023, with the EPA releasing a list of potentially affected industries including utility departments treating wastewater. If PFAS are detected above a certain level, utilities can no longer avoid disclosing the quantities of PFAS detected and may be required to take steps to determine the source of contamination and abate these substances to a concentration deemed nonthreatening to human health.
PFAS in Drinking Water
The EPA’s Office of Water proposed a ruling in December 2022 to regulate PFAS chemicals in drinking water. If enacted, public water systems would be required to collect drinking water occurrence data for 29 PFAS chemicals.
Testing PFAS in Waterways
In summer 2022, Waterkeeper Alliance facilitated a nationwide study of PFAS contamination in waterways. In a test of 114 waterways around the country, 83% were found to contain at least one type of PFAS.
Orange County, California’s San Diego Creek contained the highest levels of PFAS concentrations of all the sample sites on the West Coast, including two of the four compounds addressed in a 2022 EPA drinking water health advisory.
This is one example, along with many specific case studies, emphasizing the urgency to assess, monitor, and mitigate growing PFAS contamination across the nation. These levels of oversight are crucial for human health and safety, as well as that of ecosystems.
As these numbers inevitably grow with more PFAS contamination discovered, we can expect to see rapidly developing PFAS legislation and recommendations.
How Will These Developments Affect CEQA Regulations?
If enacted, these and other PFAS-related proposals will increase PFAS regulation exponentially at the federal level, which may trickle down to more state-level regulations.
While CEQA is a separate regulatory framework that assesses environmental impacts of projects, there may be overlap in terms of environmental considerations, especially concerning groundwater contamination.
This would require specific updates or modifications to CEQA legislation in response to PFAS concerns. As contamination data becomes more available, the likelihood of greater CEQA oversight will grow in tandem.
Stay Informed on PFAS/CEQA Updates
The PFAS regulatory landscape is constantly evolving, and it is helpful to have a third-party consultant available to assess, monitor, and offer solutions for PFAS risks on your project site. If you or your organization are concerned about how upcoming PFAS regulations may affect your operations, an experienced partner like FirstCarbon Solutions (FCS) can prepare and support you to encounter any challenges that come your way.
FCS, an ADEC Innovation, specializes in assisting our clients with complex environmental liabilities. Contact us for a free consultation to discuss your current and potential future obligations and how to prepare for upcoming PFAS regulations.
