States Take Lead Regulating Chemicals That are Contaminating Drinking Water

In the absence of federal standards, state governments and local agencies are taking on the complex work of figuring out how to regulate and remediate contamination from a certain group of industrial chemicals that is proving to be a problematic source of drinking water pollution.

The chemicals, known generally as PFAS, have long been used in a wide range of products, such as non-stick pans, stain-resistant carpets, waterproof fabric and firefighting foam. Some of the chemicals have been linked to cancer and other health problems, while there are heightened concerns about the risks they could pose to young children.

Elected officials and the public have grown increasingly aware of the potential dangers following high-profile water contamination incidents and lawsuits—including a situation involving DuPont in West Virginia that was the basis for the recent film “Dark Waters.”

Environmental Working Group, a watchdog organization, said in a report published last week that tests it commissioned found PFAS chemicals in the drinking water of dozens of U.S. cities, including major metro areas like Miami, Philadelphia and New Orleans.

The results, the group said, indicate that previous studies have underestimated the number of Americans exposed to PFAS from tap water. EWG said that among water samples for 44 places in 31 states and Washington, D.C., only three had levels below what independent studies show as posing human health risks. 

States are taking a variety of approaches when it comes to regulation. In some cases, however, where the money will come from to remedy PFAS contamination remains an open question.

“There’s a lot of states that decided to do their own thing,” said Anna Reade, a staff scientist with the Natural Resources Defense Council. “It's definitely a trend now.”

"A lot of these states are dealing with really high levels of contamination,” she added. “Once they’ve started to test for these chemicals, once they discover that those chemicals are contaminating their drinking water, that’s what’s provided a sense of urgency.”

Companies have previously phased out specific types of PFAS compounds that are viewed as particularly hazardous. But it takes the chemicals an extremely long time to break down, meaning they can linger in the environment for decades.

At least 10 states have proposed or established standards or guidelines for acceptable PFAS levels in water that are lower than or different from a nonenforceable “health advisory” standard issued by the U.S. Environmental Protection Agency. 

These states include California, Connecticut, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, North Carolina and Vermont, according to a list maintained by the Association of State Drinking Water Administrators.

Rule making is underway in Washington state to set a regulatory standard for PFAS in public water supplies and Illinois’ state environmental agency has proposed draft guidelines for groundwater.

The Association of State Drinking Water Administrators warns that differing PFAS water standards between states are “creating public confusion” about where a safe level lies.

States are taking other steps to regulate the chemicals as well, like imposing restrictions on some products that contain them—such as food packaging and firefighting foam.

An important consideration for state regulators, Reade explained, is whether to set standards covering subgroups, or classes, of the chemicals, versus individual ones. This can matter because there are thousands of chemicals where data on possible health effects is incomplete, and it is also unclear how exposure to different combinations of PFAS chemicals might affect people.

Ellen Parr Doering is the deputy director of the drinking water and groundwater division for Vermont’s Department of Environmental Conservation, which is overseeing PFAS regulations set under a state law passed last year. “We had to respond and we had to do it before EPA came up with something,” she said.

Doering noted that EPA tends to have a deeper bench of specialized staff than many states when it comes to water quality regulation issues—like determining at what level contaminants can be detected, assessing potential treatments and calculating costs and benefits. 

“It's awkward when EPA isn't there to help the states think about this. Now we're all inconsistent. Every state’s doing their own thing,” she added. “The horse left the barn.”

Vermont’s governor signed the PFAS legislation into law last May. It set a Dec. 1 deadline for water systems to test for five PFAS substances.

Regulators chose a limit of 20 parts per trillion as the maximum contaminant level that is allowed. The limit applies to the sum total of all the chemicals covered by the law. In other words, if two chemicals are present at 11 parts per trillion, for a total of 22, that’s not okay.

EPA’s health advisory standard is 70 parts per trillion for combined levels of PFOA and PFOS, which are part of the PFAS family.

Almost all of the Vermont water systems met the state’s new standard. But in four of the nearly 600 systems that carried out the testing, the amount of PFAS chemicals in the drinking water exceeded the maximum contamination level set by the state. Three of these places were schools and one is a condominium association.

All four systems now have “do not drink” orders in place as they assess how to address the contamination.

Doering emphasized that the number of places with high levels of the chemicals in the water was low compared to the overall number of water systems tested. But she added: “When you issue a ‘do not drink,’ it's a pretty big deal for a public water system.”

Bottled water, or filling water tanks with uncontaminated water, are among the short term options that these places may have for providing water until they settle on a long-term fix. It still isn’t confirmed where the PFAS contamination came from at each of the four sites.

In the years leading up to the passage of Vermont’s law, there had been problems with PFAS contamination in other places in the state, such as the Bennington area and in the vicinity of a town called Pownal.

But the places that failed Vermont’s recent PFAS test serve as a reminder that many of the water “systems” in the state are not municipal utilities, but rather smaller entities—like homeowners associations, nursing homes, schools and certain office buildings. 

These sorts of water systems are sometimes overseen by volunteers and can lack the financial and technical capacity needed to address severe problems.

Liz Royer, executive director of the Vermont Rural Water Association, said that for some of the state’s smaller-sized water systems, the relatively fast testing timeline in the new law was a challenge. They needed to get people trained on the new requirements and on how to take water samples and had to figure out how to cover the roughly $500 to $1,100 cost of the tests.

Looking ahead, the water systems that failed the test face a financial hurdle because lawmakers did not provide any funding to remediate problems with PFAS contamination.

“Overall the picture looks pretty good for Vermont,” said Royer.

“But in certain cases we still need to be out there and helping these small water systems and that's where the funding is lacking,” she added. “There’s no funding available for these systems to provide bottled water, to hire an engineer, to look at their options, in terms of: Are they going to install treatment?”

Doering said that for now these systems would have access to the state’s drinking water “revolving fund,” which provides low cost loans. Down the road, she said, it’s possible that additional funds could come from the federal government, any polluters who are identified, or possibly from state money that lawmakers choose to allocate.

"It may even be that the legislature decides to pony up something in this session,” Doering added. “We'll see. There's a lot of competing needs right now.”

At the federal level, the Democratic-controlled U.S. House earlier this month approved a broad PFAS bill. A part of that legislation would require EPA to include PFOA and PFOS on a list of chemicals that are eligible for the federal Superfund program, which deals with the cleanup of polluted sites. Taking this step could unlock additional federal resources to help with PFAS contamination.

But the bill appears to have long odds in the Republican-controlled Senate. U.S. Sen. John Barrasso, a Wyoming Republican who chairs the chamber’s Environment and Public Works Committee, has indicated that it has little chance of approval.

Meanwhile, the EPA has drafted proposed regulations focused on the chemicals, but they are still under review. 

Mike Keegan, who works on regulatory and legislative affairs for the National Rural Water Association, has been cautioning congressional lawmakers against setting a federal maximum contamination level for PFAS under the current Safe Drinking Water Act framework. He says doing so would open the door for local water systems to be fined if they’re out of compliance.

“The people who you're fining are the victims of the pollution, so you're applying the penalty to the people who are suffering,” he said, referring to the fact that a water system would likely pass on the cost of any fines to ratepayers or taxpayers.

“They don't want the stuff in their water. They don't need to be fined to get it out of their water,” Keegan added. “They need help with treatment, they need help with emergency response.”

He also suggested that setting a maximum contamination level in some ways misses the point that many people would probably prefer to have as little of the chemical in their drinking water as possible. “If it were free to get to zero, you wouldn't say: ‘stop at 69,’” he said, referring to a parts per trillion standard figure that is one notch below the EPA health advisory threshold.

In New Hampshire, 3M Company, whose products have included PFAS chemicals, along with a water and sewer district in the town of Plymouth and two other plaintiffs, filed a lawsuit last year over the state setting tougher guidelines for PFAS water contamination. 

The complaint, filed in state superior court, argued in part that the rules violated New Hampshire laws that prohibit the state from imposing “unfunded mandates” on localities. It also claimed that the rules violated a number of other state and federal constitutional provisions and state laws. 

In November, a judge issued an order blocking the state from enforcing the rules beginning on Dec. 31—at least until officials take additional steps to comply with state requirements for conducting a cost-benefit analysis of the rule. The judge, however, also said that the plaintiffs had not demonstrated that their unfunded mandate claim was likely to succeed.

Litigation in the case is still active and both sides have pressed to have it heard before the state Supreme Court.

Reade, with NRDC, said that in her view it’s important for states to enact policies that not only address PFAS contamination in water, but that also restrict products that contain the chemicals.

Taking that step, she said, can reduce human exposure to the compounds because they’ll be in fewer products. It also promises to cut down on both PFAS waste from manufacturing, and the amount of the chemicals accumulating in landfills.

There are signs that companies are responding. For instance, some retailers have stopped selling carpets that contain PFAS. 

“The source reduction part is critical,” Reade said. “We can’t just clean up the problem,” she added. “We need to stop adding more to the environment until we have a better idea of how to deal with it.”