SB 903 and California’s Fight Against PFAS

05.17.2024

Invisible yet widespread, Per- and Polyfluoroalkyl Substances (PFAS) have woven into the fabric of modern life since their introduction in the 1940s in industry and consumer products. These man-made compounds have found application in everything from non-stick cookware to firefighting foams. However, beneath their usefulness lies a concerning reality. Long-term exposure to PFAS poses significant health risks, including potential impacts on fertility, immunity, and an elevated risk for various diseases such as cancer and liver damage. As these substances persist in the environment, infiltrating air, water, and soil, their legacy of harm persists, necessitating vigilant monitoring and stringent regulations to safeguard public health.

Efforts to Address PFAS in California

California’s State Water Board, Division of Drinking Water (“DDW”) has issued statewide investigative orders to identify PFAS in areas that have a high potential impact to the environment and drinking water. These investigations have primarily pinpointed PFAS in areas of industrial firefighting foam use, including airports, bulk fuel terminals, landfills, and wastewater treatment plants.

To address PFAS in drinking water, the DDW has issued several investigation orders requiring public water systems to test for PFAS. Health and Safety Code section 116378 authorizes the State Water Board to order public water systems to monitor for PFAS and report findings. In 2022, the State Water Board issued General Order DW 2022-0001-DDW, mandating well sampling for PFAS. Among the more recent orders is General Order DW 2024-0002-DDW (“2024 Order”), issued on March 4, 2024. The 2024 Order establishes procedures for sampling, analysis, and reporting of PFAS levels in community public water systems serving disadvantaged communities.

In addition to State Water Board orders, California has and continues to lead the country in passing legislation on PFAS in food packaging, cosmetics, firefighting foam, children’s cribs, and other products and in proposing new PFAS legislation.

SB 903

On January 4, 2024, a new bill, Senate Bill 903 (Skinner) (“SB 903”) was introduced as an effort to curb the sale and use of products containing PFAS. If passed, the proposed legislation, would be slated to take effect on January 1, 2032, and aims to ban the distribution, sale, and offering for sale of products containing intentionally added PFAS. Exceptions will be made if the Department of Toxic Substances Control (“DTSC”) determines the “unavoidable use” of PFAS in the product, the prohibition is preempted by federal law, or if the product is previously used. The use of PFAS is considered an “unavoidable use” if all of the following are true: (1) There are no safer alternatives to PFAS that are reasonably available; (2) the function provided by PFAS in the product is necessary for the product to work; and (3) the use of PFAS in the product is critical for health, safety, or the functioning of society. The “unavoidable use” designation lasts up to five years, with manufacturers able to apply for an extension as long as the three criteria are met and the manufacturer has made an effort to transition towards developing safer alternatives.

Furthermore, SB 903 mandates that the DTSC maintain a publicly accessible list on its website, detailing each determination of unavoidable use, along with expiration dates of the determination, and exempt products and uses. Violations of the prohibition would result in civil and administrative penalties, managed through the PFAS Penalty Account.

If passed, SB 903 would require the DTSC to adopt regulations by January 1, 2027, to facilitate the implementation of these provisions. These regulations would be expected to include the establishment of an application fee and an administrative appeal process for reviewing penalties and departmental actions. This proposed legislation would also establish the PFAS Oversight Fund, financed by application fees from those seeking an “unavoidable use” designation. It is intended that the appropriations from the PFAS Oversight Fund would cover the DTSC’s reasonable costs associated with administering the PFAS prohibitions.

As California continues its pursuit to mitigate the threat of PFAS contamination, the proposed SB 903 and other actions stand as pivotal steps forward in addressing these harmful substances in everyday products.

Should you have any questions concerning the topic of this alert, please do not hesitate to contact the authors or your usual counsel at AALRR for clarification and guidance.

Special thanks to Farrah Ghaffarirafi, our FCPPG law clerk, for her extensive work on this alert.