Cleaning up water in the First State is on lawmakers’ minds this session.
Delaware is close to creating trust fund to help increase spending on water infrastructure in Delaware
And late last month, a bill was introduced looking to set specific state limits on PFAS chemicals in drinking water.
Contributor Jon Hurdle takes a closer look at that bill and how it compares to similar efforts elsewhere.
Is it time for Delaware to set its own standards for protecting public health from toxic “forever chemicals” in drinking water?
A bill introduced in the General Assembly in March would require the state to establish so-called maximum contaminant limits for two kinds of PFAS chemicals in drinking water to shield the public from contaminants that have been linked to multiple health problems including some cancers, high cholesterol, immune system problems and developmental issues in young children.
The measure is the state’s latest response to growing national concern about the presence of PFAS chemicals in water supplies, leading to more regulation by some states, and a new effort by the federal government under President Joe Biden to restart a process that may eventually lead to national standards being set.
In February, the U.S. Environmental Protection Agency said it will begin a new round of investigation on the chemicals’ presence in drinking water and will restart a process that could result in federal regulation of two kinds of commonly occurring PFAS chemicals – PFOA and PFOS.
And in March, Biden proposed $10 billion to monitor and remediate PFAS contamination nationwide, as part of a massive $2 trillion infrastructure program.
The EPA does not have enforceable standards for the two chemicals or any of the thousands of other chemicals in the class, prompting advocates for federal regulation to say that it is long overdue, and leading some states to set their own standards.
The agency publishes only a “health advisory limit” which recommends but does not require water systems to set 70 parts per trillion (ppt) as the safe drinking water limit for the two chemicals, individually or in combination — a level that many campaigners say is much too high to protect public health.
Federal efforts to tackle the problem have also included a bill introduced in 2019 by Delaware’s senior U.S. Senator, Tom Carper, which would have designated PFAS as hazardous substances under the Superfund law, requiring that polluters pay for cleanup.
Although the bill was not reintroduced, Carper said he’s now working with the EPA to set a national drinking water standard on PFAS.
“PFAS contamination affects Delawareans and millions across the country,” he said in a statement. “It’s clear we need to do more to protect communities from PFAS exposure.”
The manmade chemicals have been used since the 1940s in fire- and stain-resistant consumer products like nonstick cookware and flame-retardant fabrics. Health concerns prompted major U.S. manufacturers to agree to phase out their use because of health concerns starting in the mid-2000s, but exceptions were made for some of the chemicals, and others are still made overseas and enter the United States in imports of products including some food packaging, campaigners say.
PFAS – whose formal name is per- and polyfluoroalkyl substances – have been dubbed “forever chemicals” because they don’t break down in the environment and accumulate in the human body. Scientists say the chemicals can be found in the body of virtually every American.
Health concerns have prompted states including New Jersey to set strict requirements on utilities to keep some PFAS chemicals at low levels in drinking water. Last year, New Jersey finalized regulatory limits of 14 ppt for PFOA and 13 ppt for PFOS – both much tighter than the federal recommendation – establishing itself as a national leader on in the field.
In 2018, New Jersey became the first state to regulate any PFAS chemical, setting a limit of 13 ppt for PFNA.
New Jersey’s efforts were instigated by its Drinking Water Quality Institute, a panel of scientists and water quality executives who exhaustively researched the chemicals and then recommended safe limits to the state’s Department of Environmental Protection.
In Pennsylvania, Gov. Tom Wolf has set up an “action team” to investigate PFAS in the state and recommend regulation. Officials said in March that they found PFAS in about a third of the public water systems tested over the previous 17 months but none exceeded the federal advisory level for PFOA and PFOS. The testing may eventually lead to Pennsylvania setting its own PFAS limits but no levels have been proposed yet, and unless or until that happens, the state will continue to follow the federal standards.
Delaware, too, currently follows the EPA recommendation but would set its own rules if the current bill, HB 8, the Drinking Water Protection Act, becomes law. The measure would require the Division of Public Health, working with the Department of Natural Resources and Environmental Control, to propose health limits for the two chemicals; conduct a statewide survey on the chemicals using EPA testing methods; begin the process of writing regulations to enforce the new limits, and hold public hearings.
The bill would also require the agencies to report the testing results to Gov. John Carney and the Legislature by Jan. 1, 2022, and to present a plan for dealing with any PFAS contamination found during the testing.
“The establishment of maximum contaminant levels is essential in order to protect the health and safety of all Delawareans from contaminants in drinking water,” the bill says.
“Every county in Delaware has been impacted by PFAS contamination and a legally enforceable limit is needed as soon as possible to protect the health of Delawareans.” – State Rep. Debra Heffernan
Its chief sponsor, State Rep. Debra Heffernan (D –Bellefonte), said she supports the possible development of federal PFAS rules but believes that Delaware can protect its people more quickly by setting its own standards.
“We believe the State of Delaware is better positioned to more quickly set an MCL for PFOA and PFOS as a legally enforceable limit for drinking water,” she said in a statement.
She said the existing EPA limit is not as protective of public health as it should be because it is not legally enforceable and appears to be too high. “Recent data used by states to set state- specific MCLs indicate that levels lower than the EPA HAL may better protect human health,” she said.
Heffernan, an environmental toxicologist, said she doesn’t have specific regulatory levels in mind but will rely on DPH and DNREC to draw on scientific journals, standards set by other states including New Jersey, and other evidence to recommend limits for Delaware.
She said there is bipartisan state-wide support for the bill and predicted it will pass both houses in the current session. As of April 8, the bill had 11 other sponsors and 12 cosponsors across the House and the Senate.
In an early sign of bipartisan support for the bill, Joseph Fulgham, a spokesman for the House Republicans, said he was unaware of any GOP opposition to Heffernan’s bill. He noted that two GOP representatives are prime sponsors and two others are cosponsors.
As some PFAS chemicals become subject to state regulation, advocates have accused companies of trying to sidestep new rules by developing unregulated substitutes such as GenX, that have not been rigorously tested but scientists say may be just as toxic as those they are designed to replace.
Last October, Solvay Specialty Polymers of Gloucester County, NJ confirmed it had been using unidentified “process aids” as a substitute for PFNA, a type of PFAS chemical that was found in a public water well near the company’s plant in 2013, and which the company stopped using in 2010.
Late last year, New Jersey sued Solvay, saying it had been discharging both the old and new chemicals into the environment for years, and had not done enough to clean them up.
Tracy Carluccio, deputy director of the environmental group Delaware Riverkeeper Network, said some replacement chemicals have been approved by the EPA without being rigorously tested.
“These ‘new’ PFAS approvals by EPA over the past several years are not adequately screened for toxicity so we see them making their way into consumer products,” said Carluccio, a longtime backer of enforceable limits on the chemicals. “It’s negligence on the part of EPA.”
In Delaware, Solvay settled a dispute with the state in February in which it agreed to clean up PFOA around its former factory in Marshallton, in compliance with the state’s Hazardous Substance Cleanup Act.
Across the state, DNREC says it is monitoring 12 sites for PFAS contamination of drinking water, ground water or surface water. The sites include Dover Air Force Base where tests in 2016 found PFOA and PFOS contamination as high as 2.8 million ppt, or 254,000 times higher than a limit proposed that year by the federal Agency for Toxic Substances and Disease Registry.
Water sources in and around DAFB and many other U.S. military bases are heavily contaminated with PFAS because the chemicals have been used there for years in firefighting foam.
In 2019, federal officials started an “exposure assessment” for PFAS on and around the New Castle Air National Guard Base and seven other sites around the country after finding PFAS in two nearby public water systems exceeded the EPA’s health level.
Federal monitoring sites also include the Sussex County town of Blades where residents were told in 2018 to stop drinking municipal water after PFOA and PFOS levels in public and private wells were found to exceed the EPA’s advisory level. Last year, the EPA added Blades to a list of national priority sites for cleanup under its Superfund program.
But it’s a statewide problem that requires a Delaware-specific solution, State Rep. Heffernan said. “Every county in Delaware has been impacted by PFAS contamination and a legally enforceable limit is needed as soon as possible to protect the health of Delawareans.”