Union Carbide performed risk assessments for ecological and human health on the Filmont industrial landfill in South Charleston in 2014 and 2015. Both assessments concluded there was no need to take further action.
Union Carbide performed risk assessments for ecological and human health on the Filmont industrial landfill in South Charleston in 2014 and 2015. Both assessments concluded there was no need to take further action.
Scott Simonton, a professor of industrial and systems engineering at Marshall University, offered a different view to the U.S. District Court in Charleston Tuesday.
“The whole thing is junk,” he testified on behalf of Courtland Co., which owns property adjacent to the Union Carbide site and is suing the company.
Simonton said Union Carbide had insufficient data to correctly perform the risk assessments.
The company has no idea how extensive the contamination is, Simonton added, because it never conducted a full investigation of the site.
“They do not, absolutely do not understand the full nature and extent of the contamination from this site,” Simonton testified Tuesday.
Court filings and testimony show Union Carbide has been monitoring the site since at least 2005 and told state and local officials about it. The landfill was not revealed to the public until 2019.
On Monday, Simonton testified that the site contained a “soup of nasty contaminants.”
The West Virginia Department of Environmental Protection issued Union Carbide a notice of violation in late 2020 for wastewater discharge from the Filmont site.
In early 2021, the company applied for the DEP’s Voluntary Remediation Program for the site.
The trial began earlier this month. Courtland has sued Union Carbide four times since 2018, alleging contamination of its property from the Filmont landfill.
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This story was co-published with Mountain State Spotlight, a new nonprofit newsroom covering West Virginia. For more stories from Mountain State Spotlight, visit www.mountainstatespotlight.org.
The federal government is seeking to collect nearly $3.2 million in fines from coal companies owned by West Virginia Gov. Jim Justice after the firms violated the terms of a major water pollution settlement, according to documents filed Thursday in federal court.
U.S. Department of Justice attorneys said in their filing that Southern Coal Corp. and two related companies failed to renew required water pollution permits, leading to unauthorized discharges at three mining sites in Tennessee and one in Alabama. Those permits are required so regulators can limit the runoff of everything from mud to toxic metals from coal operations.
The companies’ actions triggered fines under the terms of a 2016 settlement with the Environmental Protection Agency. As part of the deal, the governor’s companies had agreed to resolve more than 23,000 water pollution violations by paying a $900,000 fine, spending millions of dollars on new pollution controls, and covering automatic penalty amounts — known as “stipulated penalties” — for any future violations.
The DOJ’s new court filing indicated Justice’s companies have so far paid nearly $2.9 million in stipulated penalties, but the firms have repeatedly failed to honor the other terms of the settlement, either delivering late or not at all on site improvements and fines, continuing what federal attorneys called a “long history” of environmental violations.
A DOJ spokesperson declined to comment beyond the Thursday court filing.
Representatives for Justice’s companies and the governor’s office did not respond to requests for comment.
The new court filing, in U.S. District Court in Roanoke, comes three months after another one of Justice’s companies reached a separate pollution settlement with environmental groups, which sued over excess discharges of selenium, a mining byproduct that can be toxic to fish, at a strip mine in southern West Virginia.
In that deal, Bluestone Coal Corp. paid a federal fine of $30,000 and contributed $270,000 to a conservation group, settling a case brought by the Sierra Club and other citizen groups. The maximum federal penalty for Bluestone Coal could have been nearly $170 million.
Justice, a billionaire listed by Forbes as the richest person in the state, owns a vast empire of businesses, including coal mines, resort hotels and agricultural interests, many of them regulated by the state agencies that report to him. While Justice’s adult children have day-to-day control over the family’s business operations, the governor has continued to guide the empire.
Last year, an investigation by ProPublica found that, over the last three decades, the governor’s companies have accumulated more than $140 million in judgments and settlements in cases brought by vendors and other businesses and government entities over unpaid bills. (The governor and his representatives say that his companies always eventually pay their bills.) Many of the cases involve Justice’s mining companies.
Last spring, about two dozen of those mining companies reached a deal with the DOJ to pay more than $5 million in delinquent mine safety penalties, some of them dating back more than five years.
The 2016 water pollution settlement at issue in this week’s filing was announced just weeks before that year’s general election, in which Justice, then a Democrat, won the governor’s race. Last year, Justice, now a Republican, was reelected to another four-year term.
On Thursday, the federal government asked U.S. District Judge Glen Conrad to order Justice’s companies to stop the unpermitted discharges and to pay the outstanding fines. Attorneys said they have been seeking compliance since September 2020.
As part of the 2016 settlement, the federal government took the unusual step of requiring Justice’s companies to put up $4.5 million, in the form of a bank line of credit, that the DOJ could access so it could pay to have mine cleanup work done if the governor’s companies failed to complete it. In December 2020, with promised work at mine sites in Tennessee unfinished, the U.S. withdrew $1.5 million from that account.
A lawyer for the companies objected to the amount of the government’s withdrawal and asked that the matter be taken up through a dispute resolution process spelled out in the settlement.
Reach reporter Ken Ward Jr. at kenwardjr@mountainstatespotlight.org
On a recent sticky July afternoon, Diana Green stands on the muddy bank of lower Davis Creek in South Charleston, West Virginia.
As a child, she enjoyed wading in the nearly 10-mile-long stream in search of crayfish and salamanders. As an adult, Green set down roots there, purchasing a farm that backs up to the creek. Seeing the waterway choked with trash and pollution, Green helped form a small community-based watershed group in the 1990s. The Davis Creek Watershed Association has been dedicated to improving the environmental quality of the watershed, and 25 years later, she says they have largely succeeded. Several different fish species, from skipjack to bass live in the stream.
But these waters have also been shaped by the Kanawha Valley’s deep connection to the nearby chemical industry.
The creek backs up against land owned by Union Carbide Corp., a corporate monolith that has for decades provided a solid living for thousands of area residents, investing in the region and its workers.
Now, the company’s goodwill is being challenged by new information unearthed in a series of lawsuits by a corporate landowner. A lawsuit filed by the Courtland Co., a private, West Virginia-based landholding firm that owns property near Davis Creek, alleges Union Carbide has for decades knowingly leaked potentially toxic pollutants into the waters of Davis Creek.
Credit Brittany Patterson / WVPB
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The back channel of Davis Creek.
Union Carbide, purchased by Dow Chemical Co. in 2001, insists in court filings that there is “no evidence to support that UCC is currently endangering the public and adversely impacting public resources.”
The company declined to answer a list of detailed questions. In an emailed statement it said: “Union Carbide Corporation (UCC) is aware of the complaints by Courtland Company. UCC denies all claims asserted against it by Courtland and will continue to vigorously defend itself. As this is ongoing litigation, UCC will not comment further at this time.”
Michael Callaghan, the attorney representing Courtland, vehemently disagrees with the company’s assessment. Callaghan is a former assistant U.S. attorney and secretary of the West Virginia Department of Environmental Protection.
“I’ve been doing environmental law in some form or fashion for 30 years, and I have never seen anything like this,” he said. “To walk away from a liability and just leave it on the ground is outrageous.”
I've been doing environmental law in some form or fashion for 30 years, and I have never seen anything like this – Michael Callaghan, attorney
Landfill Revealed
In August 2018, Courtland filed its first lawsuit against Union Carbide. A year earlier, the company conducted some environmental sampling on its property and found elevated levels of pollutants such as arsenic, barium, cadmium, lead and selenium. In the lawsuit, the company asserts the contamination came from the nearby Tech Center, which was Carbide’s research and development hub for decades.
In the suit, Courtland asked Union Carbide and Dow to investigate and clean up the contamination.
“I would call that a garden variety environment case. Just a straightforward case of your neighbor pollutes on you and we need to solve that problem,” Callaghan said. “Well, the case took quite a strange twist.”
Near the end of an October 2019 deposition, Jerome Cibrik, remediation leader at Union Carbide, revealed that “another UCC facility” in “this general area north of the tracks” was causing contamination in some monitoring wells. The tracks are part of a rail yard, sometimes called the Massey rail yard or coal yard, also owned by Union Carbide.
A screenshot of part of Jerome Cibrik’s deposition.
When asked what was disposed of in the site Cirbik said, “We don’t have good records of what was in there.” He then identified DYNEL, a polyester fiber material, as a substance that was specifically disposed of at the Filmont site.
“We had found some limited files that deal with this facility and they mentioned disposal, mainly nonhazardous materials and DYNEL,” he said. “That’s about all we know for sure what went there from the South Charleston facility.”
DYNEL is a textile fiber with a fur-like texture and appearance that was developed in the late 1940s. It’s made from vinyl chloride and acrylonitrile. It was produced at the South Charleston plant until 1975.
Cibrik noted the landfill operated at least during the 1970s and 1980s. Other documentation shows it likely began operating in the 1950s. When asked if the site was built in compliance with federal environmental law, specifically the Resource Conservation and Recovery Act, or RCRA, he said no.
The complicated law, passed by Congress in 1976, created a framework for the proper management of hazardous and non-hazardous waste.
A screenshot of part of Jerome Cibrik’s deposition.
“I do not believe so and it is not subject to those regulations,” he said. “There is also evidence hazardous waste went into it.”
Cibrik called the area the “Filmont Landfill.”
Documentation Search
In December 2019, Courtland filed a second lawsuit in the U.S. District Court for the Southern District of West Virginia, this time focused on the Filmont Landfill. The complaint alleges hazardous, toxic chemicals from both the rail yard and landfill are leaching into the soil, groundwater and surface water and contaminating both their property and running into Davis Creek.
That includes arsenic, 1,4- dioxane, multiple types of ethers, benzene, chloroform and vinyl chloride, which have been measured in groundwater on the site in excess of federally established screening levels, and in some cases dozens of times above federal drinking water limits set by U.S. Environmental Protection Agency.
Sampling done in 2011 by Union Carbide in wells installed across Davis Creek from the Filmont site showed levels of 1,4-dioxane — a synthetic industrial chemical and likely human carcinogen according to EPA — at levels 177 times above the screening level.
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The Courtland property.
Courtland has largely used the land to store vehicles and other materials, and argues it’s impossible it created the contamination. In court documents, the company asserts the underground channels through which groundwater from the Filmont site and rail yard flow are connected to Davis Creek. Lawyers for the company argue if pollution from the landfill has migrated onto Courtland’s property, then it could easily be migrating into other places, such as a nearby residential neighborhood.
But the full extent of what could be going on remains hidden. The bulk of the monitoring data and information about this landfill remains under a protective order asked for by Union Carbide. West Virginia Public Broadcasting has joined Green and some members of the Davis Creek Watershed Association in asking the judge to make the records public, given the possible public health and safety ramifications of the dumping. The judge is currently considering unsealing about two dozen documents.
A Mystery Landfill
The Filmont Landfill is located adjacent to the West Virginia Regional Technology Park, formerly owned by Union Carbide. Constructed in 1949, the sprawling campus was often referred to as the Tech Center. Scientists there were responsible for some of the most innovative breakthroughs in chemical technology in modern history.
Credit “Union Carbide South Charleston Technical Center 1949-1999”
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“The Tech Center was a world-class place with world-class scientists,” said Gary Brown, a retired Tech Center employee who worked there from 1969 until 2001 when Dow Chemical bought Union Carbide.
The Tech Center, like Carbide’s other two facilities in the Valley — the South Charleston and Institute plants — were constructed largely before the passage of most modern environmental laws.
When Brown first arrived in the Valley in the late 1960s, he recalled, he couldn’t hang his clothes outside to dry without them being covered with soot. The passage of the Clean Water Act, Clean Air Act, Toxic Substances Control Act and Resource Conservation and Recovery Act fundamentally changed the way companies could dispose of waste.
“The world changed for sure,” he said. “At one time I think people and companies looked at a river and they said ‘well, that’s a good way we can dump our waste in the river and it’ll disappear.”
Beginning in 1999, Union Carbide began working with the EPA to clean up hazardous waste within the 574-acre Tech Center, due to legal obligations under RCRA.
The company identified 70 different areas that contained waste, including three inactive landfills that until 1973 accepted coal ash slurry from the power plant at the Tech Center, municipal sludge from the South Charleston wastewater treatment plant, and some waste from Carbide’s South Charleston facility.
A 2005 investigation at the Tech Center found the landfills were contaminating groundwater with levels of arsenic and barium that, if consumed, could harm human health. Under the “corrective action,” which was finalized in 2010, Carbide was required to monitor groundwater across the Tech Center property.
The West Virginia Regional Technology Park located in South Charleston, West Virginia.
The Filmont Landfill, the dump site Courtland claims in the lawsuit is contaminated with multiple toxic pollutants, does not appear in any of the Tech Center documentation. But four EPA documents from the late 1970s and early 1980s describe some of what was dumped on the site.
According to a report filed in March 1979 by EPA’s National Enforcement Investigations Center, Union Carbide employees reported solid waste from the company’s South Charleston facility, including “lumber, paper, scrap polymer, etc” were disposed of in the Filmont Landfill.
An EPA document from 1984 states the Filmont Landfill received industrial grit processed by the South Charleston Sewage Treatment Company, a subsidiary of Union Carbide, which operated the wastewater plant owned by the City of South Charleston. The plant treated both municipal and industrial waste, including from Carbide’s South Charleston plant.
Another document notes drums were both dumped and buried on the site, which is listed as 20 acres in size.
A search of EPA’s RCRA database shows no record that the Filmont landfill was granted a permit. A spokesperson for the agency said in an email, “To the best of our knowledge there is/was no RCRA (hazardous waste) regulated landfill named Filmont in South Charleston, WV.”
West Virginia Public Broadcasting has filed a Freedom of Information Act Request with the WVDEP and is awaiting a response. Record requests filed by Courtland’s lawyers to both EPA and WVDEP have not returned any information.
South Charleston Wells
While much of the information and data about the Filmont Landfill remains sealed, public records obtained from the City of South Charleston offer a window into the scope of the contamination.
In late 2009, emails show Union Carbide and a consulting firm that handles the bulk of environmental monitoring and compliance at the Tech Center site reached out to the City of South Charleston asking for an agreement to access city property to install two monitoring wells on the other side of Davis Creek from the Filmont Landfill.
In a Nov. 18, 2009 email, Paul Weber, with CH2M Hill Environmental Services, a contractor for Union Carbide, wrote to Steve DeBarr, general manager of the City of South Charleston Sanitary Board, proposing the company install temporary wells on city property.
“UCC has investigated the groundwater contamination at the Filmont Landfill up to their property boundary, which is adjacent to Davis Creek,” Weber said. “The downgradient extent of contamination has not been defined by these previous investigations. Although UCC does not expect the contamination to extend beyond Davis Creek, UCC would like to install these two temporary monitoring wells on the other side of Davis Creek to confirm this expectation.”
In July 2010, as the city was mulling over Carbide’s request, Cibrik, the head of remediation for Carbide, sent Michael Moore, attorney for the City of South Charleston, a list of figures that show “what constituents were found in groundwater at our Filmont site.”
He notes metals, semi-volatile organic compounds and volatile organic compounds were all identified within the 10 monitoring wells, adding “metals often exceed regulatory levels at natural background concentrations.”
It would take until the summer of 2011 before Union Carbide and the city would finalize an agreement for the company to drill the two wells west of Davis Creek, one on city property.
The wells were drilled on Sept. 6, 2011. In October, Cibrik asked for a meeting with DeBarr and Moore to discuss the results of sampling conducted at the wells. The wells were sampled twice, once in September and again in October. Results showed levels of arsenic, dioxane and lead at levels above EPA standards. Arsenic is a known carcinogen. Dioxane is an ether and likely carcinogenic, according to the EPA. The data also showed 1,4-dioxane appeared to have migrated past the creek.
Following that meeting, Carbide asked the City of South Charleston for a second agreement to install a third well. On May 4, 2012, Cibrik emailed DeBarr and Moore noting the new well had been sampled twice and showed no concerning results. Cibrik characterized the bulk of the data as “good news,” noting that the groundwater flow did not appear to be going toward the nearby residential neighborhood.
When reached by phone recently, DeBarr said it was his understanding at the time, based on data provided and interpreted by Union Carbide, that the Filmont site did not pose a problem or threat to property or residents in South Charleston.
“I don’t have the expertise to say anything contrary to what they told me,” he said.
DeBarr said after 2012 the City of South Charleston did not receive any further data from the monitoring wells.
‘Significant Contamination’
Marc Glass, a principal researcher in charge of evaluation and remediation of environmental contamination in soil and water for the Morgantown-based environmental consulting firm Downstream Strategies, said the limited data available in the case does seem to indicate pollution from the Filmont Landfill appears to have left the site, especially dioxane and some chlorinated solvents.
“There’s really significant contamination there of some nasty things right at the property boundary, and it’s on the other side of Davis Creek,” he said.
Even if nearby residents aren’t using the groundwater, Glass said given the levels of contamination observed in these wells it’s possible the pollutants could rise up through the surface in vapor from and collect inside buildings.
There's really significant contamination there of some nasty things right at the property boundary, and it's on the other side of Davis Creek – Marc Glass, Downstream Strategies
Bill Muno is the former head of the Superfund program for EPA’s Region 5 and at one time oversaw the region’s RCRA program. After RCRA’s passage, Muno said anyone who generated, transported or disposed of hazardous waste was required to register with EPA.
“If the landfill was operated after November of 1980, and Union Carbide wanted to continue to operate it, it would have had to file a [RCRA] Part A permit application,” he said.
Muno said if the landfill wasn’t in use when RCRA went into effect, and it poses a threat to the health and safety of the public or environment, Union Carbide would be still responsible for taking care of the problem either on its own or through the Superfund program.
Glass agrees.
“If you dispose of hazardous waste or place hazardous waste or even store hazardous waste for a period of time — over 90 days under the law — then you have obligations under RCRA because you’re responsible for that waste material,” he said.
He said more investigation by the company as well as state and federal regulators is warranted.
“We already have enough information, even in 2012, to say we should expect there to be contamination distributed either more deeply or more widely,” Glass said.
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A road sign at the WV Regional Tech Park.
Callaghan, the attorney representing Courtland, has asked the judge overseeing the case to take immediate action to address the Filmont site.
“Part of what the lawsuit is looking to do is to protect, first of all the interests of my client, but secondly, the public [and] the public space exposed to these chemicals,” he said. “The public needs to know the nature and extent of this exposure so we can determine what kind of human health risk exists.”
As the cases move forward in court and more specifics come to light, Diana Green with the Davis Creek Watershed Association, hopes the Filmont site can be cleaned up.
Standing on the bank of the creek, surrounded by lush foliage, she lets out a heavy sigh.
“I think we’re all concerned about having all the truth of every situation that involves our watershed,” Green says. “You look all around and it’s beautiful, green and you can’t picture what’s going on below the surface.”
Correction: An earlier version of this story misstated when Dow Chemical purchased Union Carbide. It was 2001 not 2011.
The U.S. Environmental Protection Agency Wednesday released its long-awaited final replacement for the Obama administration’s signature climate change regulation, which sought to limit greenhouse gas emissions from power plants by one-third by 2025.
The Trump administration’s Affordable Clean Energy rule, or ACE, tasks states with developing plans that rely on the use of efficiency technologies to reduce carbon emissions at existing power plants.
That stands in contrast to its predecessor, the Clean Power Plan, which was never fully-implemented. The controversial rule, which was challenged in court by 27 states including West Virginia, Ohio, and Kentucky, took a broad approach to reducing emissions throughout the power sector.
At a press conference, EPA Administrator Andrew Wheeler said the final ACE rule ensures a future for coal-fired power plants.
“ACE will continue our nation’s environmental progress and it will do so legally and with proper respect to our states,” he said. “We are leveling the playing field and encouraging innovation and technology across the sector.”
Many of the Ohio Valley’s Republican lawmakers attended the EPA press conference and expressed gratitude toward the agency for the ACE rule.
“I am so excited about what it will do for West Virginia and our surrounding states,” said Rep. Carol Miller, a Republican representing West Virginia’s third district. “The Affordable Clean Energy rule takes great steps in ensuring that mines will stay open by giving the power back to the states, restoring the rule of law and supporting America’s energy diversity and affordability.”
Bill Bissett, president and CEO of the Huntington Regional Chamber of Commerce told the crowd the ACE rule provides optimism to coal-producing regions.
“It provides the security that we’re going to power West Virginia and power this country with coal and natural gas,” he said.
The rule also does not address the challenges associated with mining thermal coal in the region. t It costs more to extract coal in Appalachia, partly because the region’s coal seams have been mined for generations.
A 2018report by West Virginia University’sBureau of Business and Economic Research predicted the recent uptick in West Virginia coal production — about 27 percent since mid-2016 driven largely by exports of metallurgical coal — will level out in the next two years.
In the agency’s ownin-depth analysis of the final ACE rule, EPA predicts the amount of coal produced in the U.S. is expected to decrease across the board. In Appalachia, coal mines would produce at least 80 percent less coal in 2035 than they did in 2017.
Industry Response
Some utilities in the region said they do not expect to keep their coal plants running longer because of the ACE rule.
Melissa McHenry, a spokesperson for American Electric Power, which operates in 11 states including Kentucky, Ohio, and West Virginia, said it will be several years before the impact of the ACE rule can be determined. In an email, she said AEP continues to diversify its fuel mix and invest in cleaner forms of energy, including renewables, and the company expects that the proportion of coal in its fuel mix will continue to decline.
“We don’t expect to keep our coal plants running longer due to this rule,” she stated. “The coal plants will run as long as the overall economics make sense. Ultimately, we have to continue to make the case to state utility commissions that continuing to operate these plants is in the best interest of our customers.”
A spokesperson for FirstEnergy Corp.’s Fort Martin and Harrison coal-fired power plants in West Virginia said it is “not making any immediate changes” to operations as a result of the new rule.
Chris Perry, president and CEO of Kentucky Electric Cooperatives was more optimistic about the rule’s impact. In a statement, he said the ACE rule “provides a more flexible path forward, which will minimize the cost to members and preserve the reliability of the electric grid as our co-ops work to promote a healthy environment and vibrant rural communities.”
Legal Challenge
Hours after EPA announced it had finalized the rule, some environmental groups and the New York Attorney General announced they intend to sue the agency for failing to protect both public health and the climate under the Clean Air Act.
David Doniger, a lawyer and senior strategic director of the Natural Resources Defense Council’s climate and clean energy program, said in the intervening years since the Clean Power Plan was announced, the energy sector has achieved emissions reductions in line with that rule, despite it never being fully implemented, solely because of market forces.
“The right thing to do would be to strengthen the Clean Power Plan and not kill it,” he said. “The right thing to do would be to take care of coal miners and coal communities in the transition to a clean energy economy. This administration isn’t do either of those things.”
West Virginia Sierra Club Conservation Committee Chair Jim Kotcon said the final ACE rule is a step backward for both the climate and for those who live near the region’s many coal-fired power plants.
“We will have a disproportionate impact of those health risks from this rule change,” he said.
He added that if EPA wanted to extend a lifeline to the coal industry, the agency should seriously invest and incentivize the use of carbon capture and sequestration technology.
“But they have not done that, and without that, I don’t believe that the current market trends for coal will get much better,” Kotcon said. “So, we’re not really saving coal-fired power plants. We’re not using this technology. We are impacting the health of our residents, and we are increasing the overall greenhouse gas emissions that would otherwise have been eliminated.”
The U.S. Environmental Protection Agency said Thursday it will move forward with a series of actions to regulate toxic fluorinated chemicals, including proposing drinking water limits by the end of this year. But environment and public health advocates say that timeline is unacceptable.
In its long-awaited “PFAS Action Plan,” EPA laid out a series of actions to address the widespread contamination of fluorinated PFAS chemicals. Those chemicals include PFOA, or C8, which has been detected in several water systems in the Ohio Valley. The chemicals were used in a variety of products, including non-stick cookware, stain resistant clothing, and flame retardants.
Some municipalities in Ohio and West Virginia have been dealing with C-8 contamination for decades, and a court-ordered health monitoring program in the Ohio Valley linked exposure to a variety of health risks.
“This action plan represents a pivotal moment in the history of the agency and a pivotal moment for public health environmental protection,” said EPA Acting Administrator Andrew Wheeler, speaking at a press conference in Philadelphia. “This is the most comprehensive cross-agency action plan for a chemical of concern ever undertaken by the agency.”
Among the actions outlined in the plan, EPA said it will:
“Propose a regulatory determination,” or take the next step to determine a Maximum Contaminant Level, or MCL, for PFOA and PFOS.
Continue enforcement actions (EPA has already done eight).
Clarify cleanup strategies for PFAS contamination and soon release interim groundwater cleanup recommendations for contaminated sites.
Expand research into the human health and ecological effects of exposure, how PFAS chemicals spread and how best to remove them from the environment.
Continue the process to of adding PFAS under the Superfund law.
Consider placing PFAS chemicals in the Toxics Release Inventory, a publicly available database containing information on chemical releases and other waste management activities.
Develop a plan to better communicate the risk to the public of exposure to these chemicals.
EPA’s plan was met with enthusiasm by some groups dealing with PFAS contamination. The National Ground Water Association, an Ohio-based trade group, said it was pleased with the agency’s actions to list PFAS chemicals as hazardous substances under the federal Superfund law. Once listed under the Comprehensive Environmental Response, Compensation and Liability Act, states affected by the chemical contamination will be able to receive federal help holding polluters accountable.
The group also praised the agency’s decision to move forward with the regulatory process for creating drinking water standards for two PFAS chemicals frequently found in drinking water, PFOA and PFOS.
Concerns Surface
As more details emerged from the agency, however, environmental groups and some lawmakers expressed concern about the agency’s timeline for setting drinking water standards.
“It has taken the EPA nearly a year just to kick the can even further down the road,” said Senator Tom Carper, the top Democrat on the Senate Environment and Public Works Committee.
In a statement, Republican Sen. Shelley Moore Capito of West Virginia was more measured. Capito has repeatedly met with EPA Acting Administrator Wheeler on the PFAS issue and last week joined a bipartisan group of senators to urge the agency head to set a standard.
“It’s encouraging to see the EPA taking action to address something that has proven to be a real problem in a number of communities across the country—including in West Virginia,” Capito said. She added she intends to “remain actively engaged to push EPA to complete the process expeditiously and put that standard in place.”
In a call with reporters, Dave Ross, assistant administrator for EPA’s Office of Water, stressed the agency will go through the rulemaking process set out by the Safe Drinking Water Act. That will include using the most up-to-date science and taking public comment.
“We are going to move as quickly as we possibly can to do this,” Ross said, adding that whatever EPA proposes will likely be challenged in court. “So we will move with all deliberate speed.”
Potential Delays
But what that speed could look like is “up in the air,” said Genna Reed, lead science and policy analyst with the Union of Concerned Scientists.
The Safe Drinking Water Act gives EPA the authority to create drinking water standards for chemicals. MCLs set legally enforceable limits on the amount of a substance allowed in public drinking water systems.
In order to consider setting an MCL for a chemical, the agency must prove the pollutant adversely affects public health, is widespread in public water systems, and that regulation would reduce health risk.
EPA committed to starting that process in its action plan. Reed said now the agency will begin the process of filtering through the science surrounding these chemicals, a process she fears could face interference by political appointees at the agency who have ties to the chemical industry.
EPA’s Deputy Assistant Administrator for Chemical Safety and Pollution Prevention, Nancy Beck, formerly worked at the American Chemistry Council, an industry trade group. The White House’s nominee to head EPA’s Office of Land and Energy Management, which manages the Superfund program, is former Dow Chemical Co. counsel, Peter Wright.
“There absolutely could be a determination that PFOS and PFOA should not be regulated under the Safe Drinking Water Act, which we would argue is perhaps not in line with the best available science,” she said. “So, it’s really important to follow and see what the EPA does here and to make sure that they’re consulting with their science staff and really listening to what they’re saying on these two chemicals.”
Currently, EPA has issued a health advisory for the chemicals of 70 parts-per-trillion, but some states, including New Jersey, have adopted lower acceptable contamination levels.
During his Thursday press conference, EPA Acting Administrator Wheeler said the agency is already taking enforcement actions to cleanup contaminated drinking water if levels are higher than the health advisory recommendation.
Reed, with the Union of Concerned Scientists, noted if a MCL is created for PFOA and PFOS, it would trigger much more monitoring. For example, water systems would be required to provide water quality reports showing how much of these chemicals are found in their systems.
Uncertain Risks
Public health advocates also raise questions about continued exposure to potentially unsafe levels of PFAS chemicals while the agency considers creating drinking water standards.
The 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.
The report, ortoxicological profile, draws upon the best available research. At 852 pages, it is aimed at giving public health officials a comprehensive picture of how fluorinated chemicals may affect human health as well as highlight the different ways people may be exposed to them.
The study finds people are exposed to fluorinated chemicals in a variety of ways including through contaminated soil and water, food packaging laced with the chemicals, and some more directly by living near plants that manufacturedC8.
It also finds exposure to high levels of some fluorinated chemicals may affect fertility, increase cholesterol levels and increase the risk of thyroid disease.
David Andrews, senior scientist with Environmental Working Group, said there is already an overwhelming body of scientific evidence about the health impacts of PFOA and PFOS, informed largely by a study conducted in the Ohio Valley following a settlement agreement with DuPont.
“At this point there is close to or over 100 studies of their impact on human health really indicating the potential to cause impacts to our immune system, reproduction, development as well as all the other health effects including cancer, impacts on liver, kidney,” Andrews said. “Really, it’s just an incredible range of our bodies’ functions that these chemicals can really interrupt and disrupt.”
He noted the agency’s new plan does not address the thousands of other chemicals in the PFAS class, many of which researchers know little about. In the United States, more than 600 PFAS chemicals are allowed for use. EPA said it intends to do toxicity assessments for a handful.
“It was very much unclear what if any action they would take for other chemicals in this class,” Andrews said.
Cincinnati-based attorney Rob Bilott, who successfully brought at class action lawsuit representing more than 70,000 people against DuPont for its dumping of C8, said EPA has for years shrugged off taking action and this latest plan followed the pattern. During the course of the litigation, which lasted more than two decades, internal communications from DuPont were made public that showed the company knew about the chemical’s health effects since the 1950s.
In 2001, Bilott wrote to the EPA detailing what DuPont knew. Fifteen years later the agency released its health advisory.
“EPA has been promising to address the serious public health threat posed by PFAS chemical exposures for almost 20 years,” Bilott said. “Promising to conduct more studies, investigations and further work toward formal regulatory action at some point in the future, is not the same as actually taking formal regulatory action now.”
The agency said it will “explore” placing PFAS chemicals on its Toxics Release Inventory. If completed, that would allow for better tracking of how they are released into the environment.
EPA’s action plan states it intends to include PFAS in next Unregulated Contaminant Monitoring Rule, or UCMR. During the last round of testing, EPA found that 1.3 percent of the public water systems monitored had concentrations of PFOA and PFOS that were greater than the agency’s health advisory limit.
When asked at what level the agency would screen for PFAS chemicals, Wheeler said career staff would make that determination.
The Environmental Protection Agency said a little-studied chemical compound has not been found in treated drinking water that came from contaminated wells in Ohio and West Virginia.
The Parkersburg News & Sentinel reports the agency requested Chemours to test the water at 10 private wells in Ohio and West Virginia, as well as four public systems, over concerns of GenX contamination. GenX was found in a North Carolina river last year, where it contaminated area drinking water. The EPA posted the results of testing this week. The unregulated compound was found in untreated water in nine wells near Chemours’ Washington Works facility, but wasn’t detected in treated water.
GenX is used to make products like nonstick cookware, and has been linked to several forms of cancer in animal studies.
