A group of Democratic West Virginia lawmakers announced plans Monday to introduce legislation to regulate a group of toxic, man-made fluorinated chemicals.
Del. Evan Hansen, who represents most of Monongalia County, and a group of colleagues, said the “Clean Drinking Water Act” would address the release of per- and polyfluoroalkyl chemicals, also called PFAS chemicals. The class of chemicals includes C8, or PFOA, the chemical produced and dumped in the Parkersburg area for decades by chemical giant DuPont.
The effect of the chemical and related events were recently brought to the silver screen in the blockbuster film, “Dark Waters” starring Mark Ruffalo and Anne Hatheway.
Hansen said the bill, which is still being drafted, would require facilities that use or produce PFAS chemicals to disclose that information to the West Virginia Department of Environmental Protection. The DEP would be required to monitor these facilities and regulate their discharges of these chemicals into waterways. Currently, PFAS chemicals are unregulated nationwide.
The second component of the bill would set legally-enforceable drinking water limits, or Maximum Contaminant Levels, for some PFAS chemicals.
The legislation comes at a time when both U.S. Environmental Protection Agency and state regulators are increasingly testing for, finding and seeking regulations for these so-called “forever chemicals.”
In recent years, a growing number of communities have detected PFAS in their drinking water. The chemicals are widely used including in everything from pizza boxes to flame-retardant foam sprays and in nonstick and stain-resistant products like Teflon.
Ohio announced in September it would begin monitoring water systems near known contamination sites. In Berkeley County, federal researchers are currently studying residents’ exposure to C8 after it was found at a water treatment plant in Martinsburg. The contamination was likely due to groundwater contamination from the Shepherd Field Air National Guard Base, which used PFAS-laden firefighting foam.
Research conducted in the Mid Ohio Valley after DuPont’s settlement over C8 contamination linked chemical exposure to six diseases including thyroid disease, as well as testicular and kidney cancer.
“I think we owe it to the citizens of West Virginia, especially considering we were ground zero for the impacts of many of these chemicals, we owe it to the people of West Virginia to take matters into our own hands,” Hansen said.
The EPA is currently weighing how to set drinking water standards for PFOS and PFOA. A handful of states have set their own limits, much lower than the EPA’s current health advisory of 60 parts-per-trillion.
Hansen said if the bill is passed, West Virginia would examine both EPA’s decisions and state actions. He also noted he hopes to put safeguards in the legislation so that if contamination is found, rate payers and cash-strapped municipalities won’t be on the hook for paying for cleanup.
“What we are going to get out of this is the chance of transparency,” said Angie Rosser, executive director of the West Virginia Rivers Coalition, which supports the bill. “Companies will have to tell us what is in our water.”
Rosser and others said clean water is key to boosting the state’s economy.
“The people of our state know polluting industries drive away clean industries,” said Del. John Doyle, a Democrat from Jefferson County.
When asked about the bill’s chances of making its way through the Republican-controlled Legislature, Hansen said he recognized it could be a tough sell, but said he’s open to hearing any ideas from his colleagues across the aisle or other interested groups.
“I don’t think clean drinking water is a partisan issue,” he said.
During the 2020 session, Hansen, who is an environmental scientist, said he also intends to reintroduce a proposed amendment to the state’s Bill of Rights that would enshrine clean air, water and the preservation of the natural environment as constitutional rights for current and future generations.
The measure was introduced last session and had more than 30 co-sponsors. Two other states — Pennsylvania and Montana — have adopted a similar constitutional amendment. If passed, the environmental rights amendment would serve as a guiding principle for state leaders and regulatory agencies.
The new film “Dark Waters” depicts the real-life story of the 20-year battle waged by attorney Rob Bilott against chemical giant DuPont.
We meet Bilott, played by Mark Ruffalo, as a young corporate defense lawyer living in Cincinnati. His grandmother, who lives in Parkersburg, West Virginia, gives his phone number to local farmer, Earl Tennant. Tennant lives next to a landfill where DuPont had been dumping a chemical called C8.
In a scene from the film, Tennant, played by actor Bill Camp, shows Bilott around his farm, where his cows are dying.
“You tell me nothing’s wrong here,” Tennant tells Bilott.
Bilott, with the begrudging blessing of his law firm Taft Stettinius & Hollister, LLP, takes the case as a “small” favor for a family friend.
Over the course of the next two decades, documents released by DuPont during litigation would reveal that C8, or PFOA, a completely unregulated chemical, was toxic. The company had known this for decades, feared it was poisoning workers, and yet continued to dump the chemical into the Ohio River and air around its plant in Parkersburg without alerting the community or the U.S. Environmental Protection Agency.
Bilott’s fight in the Ohio Valley introduced America to PFOA and its related class of chemicals called PFAS. They’ve been used in everything from pizza boxes to flame-retardant foam sprays and in nonstick and stain-resistant products like Teflon. The film comes as new testing reveals widespread contamination of water systems in the region and regulators and lawmakers consider new rules on exposure to these toxic chemicals.
Broader Contamination
As concern about PFAS exposure grows Ohio Valley officials are stepping up efforts to identify the extent of contamination of water supplies.
Kentucky regulators recently released results of 81 water system tests around the state. Half tested positive for PFAS compounds. In about 82 percent of those samples, researchers found levels under five parts per trillion, much lower than EPA’s 70 parts per trillion health advisory issued in 2016.
However, it is higher than the health standards set by a handful of states for these chemicals, and some researchers believe 70 parts per trillion is not protective of human health. A recent study by the National Institute of Environmental Health Sciences suggests that safe levels of PFAS chemicals are as low as .1 to 1 parts per trillion.
Researchers found the highest levels of contamination in eastern Kentucky along the Ohio River and in drinking water systems that pulled from waters connected to the river. At water systems that use surface water from the Ohio River, the results found a 100 percent detection rate for PFAS compounds. Groundwater connected to the Ohio River saw PFAS detections in about 41 percent of samples, according to the report.
Upriver lies the Washington Works Plant, formerly owned by DuPont and now operated by its spinoff company Chemours. The plant for decades produced PFOA to make Teflon. Chemours now uses it to produce other chemicals using another PFAS compound, GenX.
The more recent testing by states reveals far more contamination than did earlier testing conducted to meet the EPA’s requirements under the agency’s Unregulated Contaminant Monitoring Rule. That rule did not require testing for as many of the PFAS compounds, and did not require public disclosure of PFAS detections at low levels. For example, under that testing regimen, only two Kentucky communities were identified in 2016 as having PFAS compounds in drinking water. This raises questions about whether water customers have received adequate notice about PFAS chemicals in their water.
Ohio in September announced it would begin monitoring water systems near known contamination sites. In recent years, a growing number of communities have detected PFAS in their drinking water. Many U.S. military bases, where PFAS-laden firefighting foams were used, have measured high levels of contamination.
The advocacy organization Environmental Working Group estimates 110 million Americans drink water with dangerous PFAS levels. EPA estimates PFAS have been found in the blood of 98 percent of Americans.
These so-called “forever chemicals” don’t break down in humans or the environment due to the strength of their carbon-fluoride bond. It’s what makes PFAS chemicals highly effective at repelling water and oil.
A growing body of research shows that same characteristic makes these chemicals toxic in humans.
Bilott won a $670 million settlement with Dupont over its undisclosed contamination of the drinking water of 70,000 residents in West Virginia and Ohio. The results of the class action lawsuit also funded a 70,000-person health study into the effects of PFOA exposure. That allowed an independent panel to link exposure to six diseases including thyroid disease and testicular and kidney cancer.
“This is one of those rare circumstances where the community came together actually got the human studies done and actually was able to confirm, you know, that this chemical was causing harm,” Bilott said, speaking at a recent event hosted by the Washington Post Live.
Credit Colleen Kelley/University of Cincinnati
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Susan Pinney at her desk.
Susan Pinney, a professor at the University of Cincinnati Department of Environmental Health, said the C8 study was incredibly important in understanding how exposure to these chemicals is affecting humans.
“They made a huge contribution to our understanding of health effects of PFOA,” she said.
Revisiting Regulation
While more states are seeking and finding evidence of PFAS contamination, guidance from federal regulators on at what level exposure to the chemicals is safe has not been finalized.
Recognizing growing concern, in February the agency announced it would take a series of actions to address the widespread contamination of fluorinated PFAS chemicals. The “PFAS Action Plan” included a commitment by EPA to set legally-enforceable drinking water standards, or Maximum Contaminant Levels, for PFOA and PFOS. EPA said it would also move forward with listing PFAS as hazardous under the Superfund law, which would make federal funding available for costly cleanup efforts.
Critics have questioned the agency’s expansive timeline for taking action. Documents have also emerged that show in-fighting between federal agencies over how best to regulate PFAS chemicals.
A report released last year by the Agency for Toxic Substances and Disease Registry, found PFAS chemicals can endanger human health at levels 7 to 10 times lower than the EPA says is safe. The Pentagon has questioned the price tag of regulatory action. The agency weakening EPA’s draft cleanup requirements for the chemicals. Last month a top defense official ignored the EPA guidance, instructing the military to use screening levels 10 times higher than EPA recommended when looking for the chemicals at its sites, according to reporting by Poltico.
The inaction has angered environmental advocates and some members of Congress. The House Oversight Committee’s Subcommittee on Environment has held four hearings on PFAS chemicals. Dozens of bills related to PFAS are snaking their way through both the House and Senate among debate about whether there is sufficient science to regulate the chemicals. One measure would add to the 2020 defense spending bill to speed up EPA’s timeline and regulate the entire class of PFAS chemicals.
“We need government to save people’s lives by protecting them from dangerous chemicals,” said Committee Chairman Rep. Harley Rouda from California at the latest hearing. “They did not know they were drinking and wouldn’t have drunk if the truth had not been shrouded by them from corporations that knew for decades how toxic these chemicals were, and are.”
While Republicans have said they broadly agree more needs to be done about PFAS contamination, some members have also attacked Bilott’s use of litigation against DuPont and questioned whether the science is sufficient.
“We should be careful about taking any sweeping actions that could have the unintended consequence of negatively impacting a broad segment of the economy, including public entities like hospitals and airports,” Rep. James Comer, a Republican from Kentucky and ranking member of the subcommittee testified. “Any legislative or regulatory actions we consider should be based on solid scientific understanding of the toxicity of specific compounds.”
Credit Harvard Chan School of Public Health
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Dr. Philippe Grandjean, of Harvard’s Chan School of Public Health.
Philippe Grandjean, an adjunct professor at Harvard University who has spent his career studying the ways pollution impacts children, including PFAS chemicals, said there is ample evidence.
“The science is very strong and the public health consequences are really serious,” he said.
In addition to the six diseases linked by the Ohio Valley C8 study, he said other research has shown vaccines might not be as effective in children with high levels of PFAS exposure.
Pinney at the University of Cincinnati characterized the science as “emerging,” but said new findings are showing similar, worrisome trends. She said it will likely take time for new research to be incorporated in the regulatory process.
But at the same time, Pinney said, she expects a growing number of municipalities will begin testing and finding PFAS in their drinking water.
“To me where we’re at right now, we’re soon going to find that there are a whole lot more communities with exposed people than anyone thought,” she said.
While EPA determines what level of exposure is safe, a handful of states, including New York, New Jersey, and Vermont, among others, have adopted drinking water standards for some PFAS chemicals much stronger than EPA’s health advisory.
New Chemicals
Over the last few years, DuPont and other companies have phased out the manufacture of PFOA and PFOS.
However, replacement chemicals including GenX, which is manufactured by DuPont’s spinoff company, Chemours, have been found widely in the Cape Fear watershed in North Carolina. GenX is used at the Dupont facility near Parkersburg in the manufacture of fluoropolymers.
Attorney Rob Bilott (left) with actor Mark Ruffalo.
Bilott has remained focused on PFAS chemicals and he said the ongoing GenX contamination shows the need for strong regulation.
“It just shows you almost kind of what a whack-a-mole game we’re dealing with here,” he said. “As the information’s finally coming out about one of these, there’s the switch to another one that’s slightly different. So, we’ve got to really focus on this broad class of chemicals and deal with all in a comprehensive way.”
In a statement, DuPont said the film “misrepresents some things that happened years ago” and in some cases depicts “wholly imagined events.”
Bilott, who has spent years embroiled in internal documents released by DuPont, said he thinks the facts speak for themselves.
“It is now in the blood of everyone. It’s in water all over the planet. I mean, these are facts,” he said. “And the story, I think people can see for themselves and they can judge for themselves exactly what really happened. And you know where the truth really is here.”
Bilott has filed a second class-action lawsuit against eight chemical companies on behalf of everyone in the U.S. who has PFAS chemicals in their blood. A judge in late September rejected the companies’ motion to dismiss the case and ruled it can proceed.
Ohio will begin testing some public and private water systems for the presence of toxic nonstick, fluorinated chemicals, broadly called PFAS.
In a press release issued Friday, Ohio Gov. Mike DeWine announced the state’s environmental and public health agencies will analyze drinking water systems located near places with known contamination. That includes near firefighting training sites and some manufacturing facilities.
PFAS chemicals were used in flame-retardant foam sprays and in the manufacture of nonstick and stain-resistant products.
“Right now, we just don’t know if these chemicals have a widespread presence in Ohio’s water supply or not, and I’ve asked the directors of both the Ohio EPA and Ohio Department of Health to develop a plan to find out,” DeWine said. “This is important for both the protection of our natural resources and for public health, which is why we must more fully evaluate the prevalence of PFAS in our water.”
Two per- and polyfluoroalkyl chemicals — PFOA and PFOS — have been linked to negative health effects. A medical study of more than 70,000 people exposed to PFOA, or C8, dumped by DuPont’s Washington Works plant in Parkersburg, linked exposure to the chemical with multiple health problems from cancer to reduced immune function.
The so-called “forever chemicals” persist in the environment and have been found in numerous water systems in the Ohio Valley.
Under DeWine’s order, the Ohio EPA and ODH have until Dec. 1 to develop an “action plan.” According to the release, the plan will contain a response strategy for working with communities and private well owners if “high levels” of PFAS chemicals are found.
Dan Tierney, press secretary for DeWine, said more details on where testing will occur, what chemicals will be included and what constitutes “high levels” of contamination will be determined by Ohio EPA and ODH. The agencies have also been asked to monitor new research and developments in the science, he said.
The U.S. EPA is currently evaluating if and how best to regulate PFAS chemicals. The agency has received criticism from some federal lawmakers for not moving fast enough. The agency in 2016 set a health advisory level of 70 parts per trillion for PFOA and PFOS in drinking water, however a report from the federal government’s Agency for Toxic Substances and Disease Registry (ATSDR), found the chemicals can endanger human health at levels many times lower than that.
Some states have gone further. New York, New Jersey and Vermont, among others, have adopted drinking water standards for some PFAS chemicals lower than the EPA. In recognition of the widespread contamination of PFAS chemicals, some states, including Michigan, have conducted statewide testing.
Sampling of more than 1,700 public water systems in Michigan showed 90 percent of systems were not contaminated. Seven percent had PFAS below 10 ppt and three percent had levels between 10-70 ppt. Two systems exceeded EPA’s 70 ppt health advisory.
An analysis by the Environmental Working Group suggests up to 110 million Americans could have PFAS in their water. EWG reanalyzed data from private firm Eurofins Eaton Analytical, which conducted water sampling for the EPA’s third Unregulated Contaminant Monitoring Rule, or UCMR.
While contamination levels measured between 10-90 ppt were reported, the Eurofins data showed 28 percent of the water utilities it tested contained PFAS chemicals at concentrations at or above 5 ppt. The percentage of samples with PFAS detections nearly doubled when the laboratory analyzed down to 2.5 ppt, according to EWG.
Executives from three major chemical companies — DuPont de Nemours, Inc., The Chemours Company and The 3M Company — testified for the first time to Congress about widespread contamination from the group of nonstick, fluorinated chemicals broadly called PFAS.
The so-called “forever chemicals” persist in the environment, are linked to ill health effects, and have been found in numerous water systems in the Ohio Valley.
The hearing — the third on PFAS contamination by the House Committee on Oversight and Reform’s Subcommittee on Environment — explored the extent to which companies that make PFAS chemicals knew about its impacts on human health and the environment and how they should be held accountable.
“These companies with us here today have screwed up and we need to hold them accountable for doing so,” said Committee Chairman Rep. Harley Rouda from California. “I hope the people representing those companies here today will admit their mistakes so that we can all move forward and achieve what I believe is our common goal: to clean up contaminated sites, stop exposing innocent people to toxic chemicals and making sure that all Americans have clean water and clean air.”
Concern over PFAS contamination has grown nationwide. The Environmental Working Group estimates the drinking water systems of more than 700 communities are contaminated with PFAS. Perfluoroalkyl chemicals were used to make nonstick products and are found in some flame retardants including firefighting foam.
Company executives were split over how PFAS chemicals should be regulated, although none supported broad legislative action to regulate all 5,000 PFAS chemicals.
A representative from DuPont went the farthest. Daryl Roberts, DuPont’s chief operating and engineering officer, told the House subcommittee the company welcomed specific regulatory actions, such as listing two PFAS chemicals, PFOA and PFOS, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, also known as the Superfund law.
“We support legislation to list PFOA and PFOS, and only those two, as hazardous substances under CERCLA. That’s further than the other companies here are willing to go today, but that’s what we believe is correct,” he said. “What we know about those chemicals is that they’re bio-persistent. That’s enough to know that there’s a clear concern for those chemicals within society at this point in time, and we feel for that reason they should be regulated.”
DuPont no longer makes PFAS chemicals. It split off its fluorinated chemicals business in 2015 to Chemours. A representative from Chemours said that company did not support such regulation. Chemours and DuPont are engaged in litigation over the split. Chemours argues DuPont misrepresented the environmental liabilities associated with PFAS chemicals.
3M’s Senior Vice President of Corporate Affairs, Denise Rutherford, doubled down on her company’s claim that there are no negative health effects from PFAS exposure.
“When we look at that evidence there is no cause and effect for adverse human health effects at the levels we are exposed to as a general population,” she said.
That didn’t sit well with some Democrats, including New York Rep. Alexandria Ocasio-Cortez who said this position goes against findings from government agencies and 3M’s own scientists.
The federal government’s Agency for Toxic Substances and Disease Registry says some studies in humans with PFAS exposure have shown: effects on growth, learning, and behavior of infants; an increase cholesterol levels; effects on the immune system; and an increase in the risk of cancer.
The hearing began with testimony from two attorneys whose lawsuits against DuPont and 3M unearthed thousands of internal company documents that showed both companies knew the chemicals were dangerous to human health and the environment for decades, but didn’t tell its employees or federal regulators.
In 2012, an independent panel of scientists — the C8 Science Panel — concluded drinking PFAS contaminated water was linked with six diseases, including kidney and testicular cancers.
The group looked at all existing studies and conducted new ones on 70,000 impacted community members from around the Parkersburg area.
“This independent scientific review has occurred. Unfortunately EPA has not acted,” Bilott testified. “We have more than enough evidence. We should move forward and protect the public.”
A federal public health agency is launching a study this fall that will evaluate Berkeley County residents’ exposure to the PFAS group of chemicals, which includes PFOA, or C8.
The perfluoroalkyl chemicals are used to make nonstick products and are found in some flame retardants including firefighting foam.
Representatives for the Agency for Toxic Substances and Disease Registry (ATSDR) told a crowd of about two dozen people who attended an information session Wednesday evening that public participation is crucial to the study.
“We hope you all become ambassadors for what we’re trying to do and if you talk about this amongst your neighbors and if you hear of someone who has a letter you encourage them to participate,” said Patrick Breysse, head of ATSDR and the Centers for Disease Control’s National Center for Environmental Health.
Federal researchers are launching PFAS exposure assessments in eight communities across the country that are near military sites, including Berkeley County. The study was prompted by Congress, which mandated the research in the 2018 National Defense Authorization Act.
The exposure assessment is the first step toward understanding more about how PFAS chemicals might affect human health, said Rachel Rogers, an environmental health scientist who leads ATSDR’s work on PFAS.
“The goal of this exposure assessment is to understand how people have been exposed,” she said. “We’ll be doing that by measuring levels of PFAS in people’s bodies, specifically in their blood and in their urine.”
Brad Goodwin, coordinator of the exposure assessment, said the goal of the study is to learn more about how much PFAS residents have in their bodies and where it could have come from.
“So we’ll be able to look at the concentrations of PFAS in people’s blood here in Berkeley County and see how those compared to people that didn’t get exposed through drinking water and understand how much additional exposure there may have been,” he said.
To be scientifically rigorous, the study needs 395 randomly selected participants from the Berkeley County area. Letters inviting people to participate were sent out this week.
In addition to giving a urine and blood sample, participants will be asked to answer a short questionnaire about the ways they may have been exposed to the Teflon chemicals. The researchers will also collect tap water and indoor dust samples at some homes.
Researchers will be in Berkeley County in late September and early October.
Previous research, including from the Parkersburg region where residents were exposed to DuPont’s C8 chemical for decades, has shown exposure to these chemicals at low levels is linked to some cancers and thyroid problems. PFAS chemicals have been detected in at least 10 water systems in Kentucky, Ohio and West Virginia.
ATSDR researcher Rodgers stressed the exposure assessments will not address if and how exposure to PFAS through drinking water impacts health.
“Those are important questions that we are looking to answer down the road,” she said. “This exposure assessment is just a first step in that direction.”
The agency is planning on undertaking a health impacts study later.
All residents who live in a household that receive a letter are eligible to participate as long as they are at least three years old, lived in the area for at least one year before May 19, 2016 and don’t suffer from a blood disorder.
Final results from all sites involved in the assessments are expected by late 2021.
A bipartisan group of U.S. Senators including West Virginia Republican Shelley Moore Capito this week introduced two bills aimed at further regulating a group of toxic chemicals known as PFAS.
The chemicals include PFOA, or C-8, used to make nonstick products and other similar chemicals used in flame retardants. They have been detected in at least 10 water systems in Kentucky, Ohio, and West Virginia. Exposure has been linked to some cancers and thyroid problems at very low levels.
The U.S. Environmental Protection Agency last year pledged to address the chemicals. In February, the agency released its long-awaited “PFAS Action Plan” that outlined steps it intends to take to address the public health impacts of these widely-used chemicals. EPA said it will begin the process of proposing drinking water limits by the end of this year. Environment and public health advocates say that timeline is unacceptably slow given the health risks and extent of contamination.
Many lawmakers in both parties also want more action. More than a dozen bills aimed at addressing PFAS contamination have been introduced in recent weeks.
On Tuesday, Capito and Democratic Sen. Kirsten Gillibrand of New York introduced a bill that would mandate the EPA to set legal limits, or Maximum Contaminant Levels (MCLs), for PFAS chemicals in drinking water under the federal Safe Drinking Water Act.
The “Protect Drinking Water from PFAS Act of 2019” requires the final MCLs be issued within two years.
In an interview, Capito said while she has found EPA to be responsive, efforts to address PFAS contamination need to be more transparent and move more quickly.
“EPA has said they’re moving in this direction, but nothing moves and agency quicker or faster than a bill or than legislation that says you have to do this by date certain,” she said.
Environmental groups praised the legislation.
“This bipartisan, common-sense proposal should send a signal to the Trump administration that this out-of-control PFAS contamination crisis needs serious leadership from Washington,” Scott Faber, senior vice president for government affairs for the Environmental Working Group, said in a statement.
The non-profit this month updated its map of nationwide PFAS contamination. EWG estimates at least 610 locations in 43 states are known to be contaminated with fluorinated chemicals, including drinking water systems serving an estimated 19 million people.
Similar bipartisan legislation was recently introduced in the House.
A hearing in the Senate Committee on Environment and Public Works on these and related bills is set for next week. It follows a hearing this week in the House.
Transparency
Capito and Gillibrand introduced another bill, the “PFAS Release Disclosure Act” on Thursday, with co-sponsor Sen.Tom Carper, a Democrat from Delaware. It aims to improve the availability of information about the use and release of PFAS chemicals by adding hundreds of substances to a federal chemical database called the Toxics Release Inventory.
Capito said regulating these chemicals as a class was the easiest way to address them.
“I think we have incomplete information here,” she said. “This isn’t an issue that we feel that we’re fully informed on and I think that’s part of the reason you’ve seen a quick succession of legislation move forward.”
She also noted more work needs to be done to help communities with contamination with what are often costly cleanup efforts.
Some municipalities in Ohio and West Virginia have been dealing with PFAS contamination for decades, including Martinsburg in the Eastern Panhandle of West Virginia.
Last year, the city sued the Air National Guard to recover millions of dollars spent to install a water treatment system at the city’s water filtration plant after PFOA and PFOS from firefighting foam used by the Air National Guard infiltrated the water supply.
