PFAS is an acronym used as shorthand for several related synthetic chemical compounds. These compounds have unique properties that make them highly stable and resistant to degradation in the environment. For that reason PFAS are called “forever chemicals.” Recently we have discovered that humans have PFAS in our bodies through all sorts of ingestion, from using non-stick skillets to dental floss covered in smooth film. Scientific evidence indicates that several serious health problems can result, such as poor fetal growth, compromised liver, thyroid and immune functions and increased risk of certain cancers.
One major and preventable source of PFAS exposure is our drinking water. Identifying the location, source and amount of PFAS in West Virginia drinking water has occupied the legislature and state public health agencies over the last three years. Recently the federal EPA proposed very low drinking water standards for PFAS under the Safe Drinking Water Act.
The Background in West Virginia
Public consciousness of PFAS awakened after the 2019 film “Dark Waters,” which exposed years of unlawful PFAS pollution of the Ohio River by DuPont near Parkersburg, West Virginia and followed the subsequent lawsuit to hold the company accountable.
Environmental activists both in and outside West Virginia government recognized the danger and sought a legislative solution. In 2020 the Legislature passed SCR 46 requesting a study of all raw drinking water sources for possible PFAS pollution. The US Geological Survey was contracted to perform this research.
The USGS reported that between 2019 and 2021 PFAS had been detected above the then-current EPA drinking water health advisory in 13% of the West Virginia raw water sources sampled. Before USGS could update this research, the EPA issued new health advisories for four PFAS compounds.
The USGS’s updated research was completed in June 2022 with a Report on PFAS in West Virginia groundwater and surface water sources used for public drinking water. This was raw water, not water after treatment. Nevertheless, the result was shocking. The Report disclosed that PFAS was found in levels above the new EPA standards in 130 community water systems used to supply drinking water to roughly 700,000 West Virginians. This was 49% of the raw water sources sampled. The heaviest concentrations of these contaminated water supplies was along the Ohio River and in the Eastern Panhandle.
Legislative Response in 2023
The 2023 West Virginia Legislature, which concluded its regular session in March 2023, took action. A coalition of Republicans and Democrats passed HB 3189. The effort was led by Del. Evan Hansen of Monongalia. The thrust of the new law is to identify the sources of PFAS in drinking water so that an effective remediation can be developed.
HB 3189 directs the West Virginia Department of Environmental Protection to develop action plans to identify and address PFAS sources in drinking water on a relatively tight time schedule, depending on the level of PFAS found in the water source. It also directs manufacturers who discharge into surface water to report the use of PFAS in their operations. Quarterly monitoring of PFAS levels at those facilities will follow.
The key to this monitoring is that when the EPA issues final water quality criteria under the Clean Water Act for any PFAS, DEP is directed to develop a legislative rule adopting criteria for industrial discharge permits no more stringent than the federal standards, but likely to be identical to those standards.
But here is the important point: the new West Virginia legislation does not require DEP or any other state agency to begin removing PFAS now. Some critics wonder aloud what more is needed for action in the Mountain State to remove pollutants known for 22 years to be harmful.
Federal EPA Action
On March 14, 2023, EPA announced the proposed National Primary Drinking Water Regulation for six PFAS compounds. This proposed Regulation requires no action until it is final, which should be before the end of 2023. The proposed Regulation will establish legally enforceable maximum contaminant levels for the PFAS, which for the two most prevalent compounds will be zero. The Regulation will also require monitoring and notification to the public of PFAS levels and reduction of excessive levels of PFAS where found.
To help communities on the frontline of PFAS contamination, the Biden Administration’s Infrastructure Investment and Jobs Act invests $11.7B in the Drinking Water State Revolving Fund and $9B in additional money to help communities deal with “emerging contaminants,” especially small and disadvantaged communities of which there are many in West Virginia.
On May 12, 2023, the Department of Health and Human Resources and DEP announced that 27 of 37 public water systems sampled (post-treatment) showed detectable levels of some PFAS. Of these 27, PFAS levels above at least one of the EPA proposed standards were found in 19. Dr. Matthew Christiansen, state Health Officer, said that the new sampling results did not call for do-not-consume orders, but that those concerned could use home filtration systems that address PFAS.