In September of 2019 the Denver Post reported that testing had identified high levels of toxic “forever chemicals” in surface waters and groundwater wells along the Front Range.  These contaminants were found in waters in El Paso County, Adams County, Arapahoe County, Denver County and Boulder County.   Commonly referred to as “forever chemicals” because they persist in the environment and resist the natural processes that ordinarily break down contaminants, these substances came to public attention when it was discovered DuPont was dumping these chemical wastes from a Teflon plant in West Virginia. The chemicals contaminated an adjoining farm and tainted the water supply of a neighboring town.  The ensuing legal battle resulted in settlements reaching into the hundreds of millions of dollars. Later, the incident became the subject of the feature film, Dark Waters (Focus Films 2019), starring Mark Ruffalo and Ann Hathaway.  In this article, we will examine these chemicals and their impacts, as well as the responses from the federal governmental and Colorado’s state government. 

THE CONTAMINANTS

“What if you drank it?”

“Drank it? You don’t.”

“What if you did?”

Per- and polyfluoroalkyl substances (“PFAS”) are a group of man-made chemicals.  Two of the most well-known PFAS compounds are perfluorooctanoic acid (“PFOA”), which was used in making Teflon, and perfluorooctanesulfonic acid (“PFOS”), which was a key ingredient of Scotchgard. The PFAS group also includes thousands of other related chemicals.  Used chiefly in consumer products like cookware, food packaging, and stain repellants, as well as in firefighting foams, these chemicals have been manufactured around the globe including in the United States since the 1940s.

Because of their stable chemical composition, PFAS chemicals are persistent in the environment.  That is, they resist the environmental degradation processes that ordinarily break down contaminants over time.  The major sources of PFAS in the environment are manufacturing, processing, and disposal facilities.  Airports and military installations that use firefighting foam are also important sources of PFAS contamination.  These chemicals can be released into the air, soil, and water – including sources of drinking water.  In addition, because they do not break down in water they can be transported long distances and deposited in sediments far from their source of origin.

Studies have shown widespread human exposure to these chemicals.  For instance, PFOA was detected in blood serum in 99% of the U.S. general population between 1999 and 2012.  There are also documented adverse health effects from exposure to PFAS chemicals.  An epidemiological study of the residents of Parkerburg, West Virginia, showed that exposure to PFOA through contaminated drinking water is associated with a number of conditions, including high cholesterol, thyroid disease, pregnancy-induced hypertension, ulcerative colitis, and kidney and testicular cancer.  Some PFAS are demonstrated to be toxic to laboratory animals, causing reproductive, developmental, and systemic effects in laboratory tests. The EPA has found there is evidence that suggests PFOS and PFOA may cause cancer, and the World Health Organization has declared that PFOA is a possible human carcinogen.

The major industrial producers of PFOA and PFOS phased out the manufacture of these chemicals in the United States by 2015. But they are still prevalent in the environment due to their long residence time, importation in products, and some continuing uses.  In addition, there are many other PFAS chemicals which are still in production and use throughout the United States. As a consequence, current data shows that there are over 1,500 impacted sites spread across 49 states.

THE NATIONAL RESPONSE

“Good luck in Washington.”

PFAS were not generally recognized as chemicals of concern at the time Congress enacted our major environmental laws.  But by the late 1990’s, regulators began to inquire regarding the impacts of these emerging contaminants.  Concerns about the effects of the chemicals continued to grow, and in 2012 the United States Environmental Protection Agency (“EPA”) added PFOA, PFOS, and a number of other PFAS compounds to the list of chemicals mandated for testing by public water systems.

In May of 2016, the EPA issued health advisories for PFOA and PFOS. These advisories noted the persistence of the chemicals and their propensity to bioaccumulate in the human body. They also examined the accumulated literature regarding the health consequences due to exposure to the chemicals. Based on the estimated risk posed to human health, the EPA set a limit of 70 parts per trillion (“ppt”) for lifetime exposure to PFOA and PFOS in drinking water. However, these health advisories were not enforceable regulations. Instead, they were designed to provide information to allow for better protection of human health and the environment.

In 2019, the EPA issued an action plan to outline further steps the agency intended to take to respond to the hazards posed by PFAS contamination. In the plan, the EPA announced its long-term goals to (1) evaluate the need for a formal, enforceable maximum contaminant level for PFOA and PFOS in drinking water; (2) seek the designation of PFOA and PFOS as “hazardous substances” under federal environmental laws; (3) develop groundwater cleanup recommendations for PFOA and PFOS at contaminated sites; and (4) develop additional information for the toxicity of certain other PFAS chemicals. The document also discussed EPA’s plans for public engagement and other steps such as the use of permit conditions and enforcement actions to reduce discharges of PFAS chemicals to waters. Overall, the plan represented a systemic approach aimed at reducing public exposure to PFOA and PFOS as well as proposing forward-looking steps to better understand and control the threat posed by other PFAS chemicals.

Later that same year, Congress joined the effort by enacting the “PFAS Act of 2019” as part of the National Defense Authorization Act for Fiscal Year 2020.  The Act directed the EPA to list 14 specific PFAS, as well as any additional PFAS that met certain criteria, as “toxic chemicals” under Section 313 of the Emergency Planning and Community Right-to-Know Act.  Commonly referred to as the Toxic Release Inventory, this provision requires covered facilities which manufacture, process or otherwise use a listed toxic chemical to annually report to EPA environmental releases and other waste management activities relating to the toxic substance.  In accordance with the new law, EPA published a list of 172 specific PFAS chemicals that now must be annually reported under the Toxic Release Inventory. EPA also adopted a rule prohibiting the manufacture or import of certain substances, including several specific PFAS chemicals, without prior EPA approval.

EPA’s most significant action, however, was to publish a notice in the Federal Register in March of 2020.  In this notice, the agency acknowledged that PFOA and PFOS can cause adverse human health effects and that the presence of these chemicals in public drinking water is a serious health concern. It also acknowledged that regulating PFOA and PFOS would provide a meaningful opportunity to reduce these health risks. But instead of proposing enforceable regulations to limit the levels of PFAS in our drinking water, the EPA announced it was making a “preliminary determination to regulate PFOA and PFOS with a [National Primary Drinking Water Regulation] after evaluating health, occurrence, and other related information[.]” That is, the EPA announced it had made a preliminary decision that at some point in the future it would regulate PFOA and PFOS through an enforceable drinking water standard – but that time was not now. Instead, the agency stated that, for now, it would solicit additional comments regarding the analysis it had already performed of the existing data and whether there was additional data it should consider.  This implies several years of additional regulatory delay before the EPA actually takes action to propose enforceable limits for the PFAS that are in the nation’s drinking water.  As such, the EPA’s latest move appears to be a step backwards from the course of action envisioned in its 2019 action plan.

THE COLORADO RESPONSE

“We protect us. We do.”

Colorado is one of the handful of states that has acted to take steps on its own to address the emerging threat of PFAS contamination.  The problem gained attention within the state when testing near Peterson Air Force Base in Colorado Springs revealed that PFAS chemicals had tainted the drinking water supply of 80,000 people.  The contamination reportedly came from the use of firefighting foams which contained PFAS chemicals.  The contaminants entered the Fountain Creek watershed upgradient of the towns of Widefield, Fountain, and Security and impacted the wells supplying the local water district.  At one well, data showed contaminants at 1,370 ppt.  Further testing at Peterson Air Force base showed PFAS in the groundwater at levels up to 88,000 ppt – more than 1,250 times higher than EPA’s health advisory limit of 70 ppt.  Additional investigation also identified a number of other air force bases, fire stations, and industrial sites across the state that were likewise impacted by PFAS.

In response, the Colorado Legislature enacted the Firefighting Foams and Personal Protective Equipment Control Act to ban the use of firefighting foams containing PFAS during training activities and to phase out the future use or sale of such foams in the State of Colorado.  From a regulatory standpoint, the Colorado Department of Public Health and Environment (“CDPHE”) adopted a groundwater quality standard of 70 ppt for combined PFOA and PFOS at the impacted area near Colorado Springs. 

CDPHE also put forth an action plan which aimed to limit public exposure to PFAS chemicals, provide for mitigation and cleanup of contaminated sites, conduct health studies, improve the state’s capacity for testing for PFAS, set state-level limits for PFAS in drinking water and surface waters and groundwater, implement the new Act regarding the use of firefighting foams and a number of additional objectives.  Along these lines, Colorado regulations now list PFOA and PFOS as hazardous waste constituents, meaning they must be accounted for as hazardous wastes in ongoing and future remedial actions.  In addition, the Colorado Water Quality Control Commission recently adopted a new policy for the protection of drinking water sources which essentially adopts EPA’s 70 ppt health advisory limit as a water quality standard for permitted discharges and for use in cleanup actions for drinking water sources contaminated by PFAS.

Other states are likewise adopting standards for PFAS chemicals, including New York, Massachusetts, Michigan, New Jersey, Illinois and others.  In short, Colorado and many other states are moving diligently to take the actions that EPA has not.

CONCLUSION

“The whole world needs to know.”

The emergence of PFAS as pollutants of concern over the past two decades has presented a myriad of challenges. Our eyes have been opened to a hazard that threatens the health of millions of Americans who have PFAS chemicals in their bloodstreams and in their drinking water. The initial federal response provided critical awareness and guidance as to the threat.  But the EPA has since neglected to provide an enforceable mechanism to ensure safe drinking water. In light of the failure of effective leadership from the federal level, the states have stepped in to protect their citizens. In Colorado in particular, the state has engaged in a vigorous and comprehensive response since the issue came to light in Colorado Springs that has caught up with–and in some ways surpassed–the federal effort.

SOURCES

Bruce Finley, Colorado Ramps up Response to Toxic “Forever Chemicals” after Discovery of Hot Spots across Metro Denver, Den. Post (September 10, 2019), https://www.denverpost.com/2019/09/10/pfas-chemical-contamination-denver-colorado/.

Nathaniel Rich, The Lawyer Who Became DuPont’s Worst Nightmare, New York Times Magazine (Jan. 6, 2016), https://www.nytimes.com/2016/01/10/magazine/the-lawyer-who-became-duponts-worst-nightmare.html.

EPA, Basic Information on PFAS (2020), https://www.epa.gov/pfas/basic-information-pfas.

EPA, Technical Fact Sheet – Perfluorooctane Sulfonate (PFOS) and Perfluorooctanoic Acid (PFOA) (2017), https://www.epa.gov/sites/production/files/2017-12/documents/ffrrofactsheet_contaminants_pfos_pfoa_11-20-17_508_0.pdf.

Environmental Working Group, Mapping the PFAS Contamination Crisis: New Data Show 1,582 Sites in 49 States (2020), https://www.ewg.org/interactive-maps/pfas_contamination/.

Bruce Finley, Drinking Water in Three Colorado Cities Contaminated with Toxic Chemicals above EPA Limits, Den. Post (June 15, 2016), https://www.denverpost.com/2016/06/15/colorado-widefield-fountain-security-water-chemicals-toxic-epa/.

Bruce Finley, Air Force Admits Firefighting Foam that Was Spilled on Base Contaminated Water and Soil; People South of Colorado Springs Left in Lurch, Den. Post (July 25, 2017), https://www.denverpost.com/2017/07/25/air-force-admits-soil-water-contamination/.