As WV targets PFAS, advocates see protection in hazardous substance designation

They’re PFAS — an acronym for per- and polyfluoroalkyl substances — man-made, industrial chemicals with an especially toxic legacy in West Virginia.

But two of the most common PFAS, often referred to as “forever chemicals� since they don’t break down in the environment, weren’t considered hazardous substances by the federal government until last month.

That’s when the Environmental Protection Agency designated the two PFAS, known as PFOA (perfluorooctanoic acid) and PFOS (perfluorooctanesulfonic acid), as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a move aimed at getting polluters to pay to clean them up.

Prior to last month, PFOA and PFOS weren’t on the federal list of roughly 800 CERCLA hazardous substances.

“[That’s] because the companies making these toxic forever chemicals illegally concealed their harms from you,� Scott Faber, representative of Environmental Working Group, a national environmental health advocacy group, testified at a United States Senate Environment and Public Works Committee hearing on examining PFAS as hazardous substances in March.

The EPA has said DuPont failed for more than two decades to report data indicating PFAS health risks from manufacturing at the Washington Works plant. The company agreed to pay $10.25 million for reporting violations in 2005 in what the EPA then said was the largest civil administrative penalty it ever obtained under a federal environmental statute.

After PFOA used to make Teflon-related products at what was DuPont’s Washington Works facility near Parkersburg starting in 1951 discharged into water supplies, people living in the area experienced increased rates of:

• Testicular and kidney cancer
• Thyroid disease
• Ulcerative colitis
• Pregnancy-induced hypertension

The EPA says its CERCLA designation rule taking effect in July will wipe out barriers to timely cleanup of contaminated sites and allow the agency to pursue parties responsible for significant contamination.

Because of the new rule, releases of PFOA and PFOS that meet or exceed a reportable quantity within a 24-hour period must be reported to the National Response Center, state or tribal emergency response commission, and the local or tribal emergency planning committee for areas impacted by the release.

The EPA says the new rule will:

• Allow for earlier and additional CERCLA response activities that address areas with high levels of PFOA and PFOS contamination, lowering the risk of adverse health impacts for the most exposed communities
• Help communities with PFOA and PFOS pollution by holding polluters rather than taxpayers accountable for addressing contamination, including costs sought by the EPA for investigations and cleanup
• Boost transparency about new releases of PFOA and PFOS

Voices for and against the rule

Designation does not automatically require any investigation or cleanup actions.

Water quality advocates have hailed the EPA’s new rule. West Virginia Rivers Coalition interim executive director Autumn Crowe called the EPA’s move “monumental.�

“[It] ensures that those responsible for contaminating our waterways bear the financial responsibility rather than taxpayers,� Crowe said.

The EPA released an enforcement discretion and settlement policy last month saying it doesn’t intend to pursue entities “where equitable factors do not support seeking response actions or costs under CERCLA,� including:

• Community water systems and publicly owned treatment works
• Municipal separate storm sewer systems
• Publicly owned/operated municipal solid waste landfills
• Publicly owned airports and local fire departments
• Farms where biosolids are applied to the land

West Virginia Department of Environmental Protection spokesperson Terry Fletcher said the DEP was “encouraged� by the EPA policy.

Todd Grinstead, executive director of the West Virginia Rural Water Association, which provides technical assistance to rural water and wastewater utilities, declined to comment on the EPA’s hazardous substance designation for PFOA and PFOS.

U.S. Sen. Shelley Moore Capito, R-W.Va., has been much more vocal as the top Republican on the Environment and Public Works Committee, leading opponents of the rule who say the EPA’s discretion policy doesn’t offer utilities and the ratepayers that support them enough protection from CERCLA liability.

“The EPA’s unprecedented decision today puts local communities and ratepayers on the hook for PFAS contamination they had nothing to do with in the first place,� Capito said in an April 19 statement on the EPA’s announcement of the finalized designations.

At the committee’s March hearing examining making PFAS hazardous substances under CERCLA, two witnesses representing water delivery companies and landfills lobbied for federal exemptions from CERCLA liability.

Michael Witt, representing the Water Coalition Against PFAS, asked Congress to provide water systems with liability protections under CERCLA for PFAS to help ensure polluters, not the public, pay for cleanup. Witt said the EPA’s discretion policy doesn’t “carry the force of law� and noted its impact is limited to cleanups led by the EPA, not private parties.

“CERCLA provides even the most culpable of parties with multiple avenues to drag innocent parties into extremely costly and complex litigation, and there is little EPA can do to stop it,� Witt said.

Robert Fox, representing the Solid Waste Association of North America and the National Waste Recycling Association, called for what he called an exemption from CERCLA liability arising from permitted discharges of leachate. Fox defined leachate as the liquid found in landfills that is either managed via a permit to a publicly owned treatment works or discharged directly under a water pollution control permit.

Fox predicted CERCLA designation of PFOA and PFOS without further congressional action would force landfills to restrict inbound wastes with elevated levels of PFAS compounds, including spent water filtration systems, biosolids and contaminated soils from CERCLA sites.

The EPA’s goal of promptly cleaning up PFAS at other sites will be delayed, Fox argued, adding that CERCLA liability would disrupt municipal waste infrastructure.

“Certain wastes will have no place to go,� Fox said. “And increased disposal costs will turn CERCLA’s objectives from a ‘polluter pays’ policy into a ‘community pays’ reality.�

But PFOA and PFOS are joining a long list of hazardous substances that are found in drinking water systems and landfills.

During his March hearing testimony, Faber pointed to 66 constituents of the federal hazardous substances list that are regulated contaminants under the federal Safe Drinking Water Act and nearly 250 hazardous substances that are CERCLA contaminants found in landfills.

“So you may be wondering: If water utilities and waste managers are already addressing hundreds of other hazardous substances, what’s different about PFOA and PFOS? The answer is: Nothing is different about PFOA and PFOS,� Faber said.

Faber said creating statutory loopholes would remove what he called a “powerful incentive� for water utilities and waste managers to be better stewards of PFOA and PFOS.

Faber cited examples of officials allowing lead to leach into water from supply pipes to cause a water crisis in Flint, Michigan in the 2010s and maintenance failures leading to water shortages in recent years in Jackson, Mississippi.

“Our view is simple: Legal loopholes are the problem, not the solution,� Faber testified.

DEP, Rivers Coalition working together on PFAS planning

West Virginia’s PFAS problem has come into greater focus through testing collaboration between the DEP and the U.S. Geological Survey.

The DEP said 27 out of 37 public water systems sampled showed detectable levels of select PFAS in treated water, per a USGS study released last year. Of those 27 systems, 19 had PFAS detections above at least one regulatory standard then proposed by the EPA.

“That’s significant,� DEP Deputy Secretary Scott Mandirola said of the test results during the EPA’s Mid-Atlantic Summit held virtually on May 16.

Mandirola, Crowe and DEP environmental resources program administrator Casey Korbini outlined a partnership during the summit between the DEP and Rivers Coalition to successfully apply for a $1 million EPA grant they received last month aimed at tackling PFAS through community engagement.

In October, the EPA announced it had selected the DEP to receive $1 million for the development and piloting of a community engagement process to inform PFAS action plans. The plans will identify and address sources of PFAS in raw water sources of public drinking water systems.

The grant is through the EPA’s Environmental Justice Government-to-Government program, which provides funding at the state and local levels to support government activities in partnership with community-based organizations that result in environmental or public health impacts in communities bearing disproportionate environmental harms.

Crowe said the DEP and Rivers Coalition would work with 11 target communities to develop PFAS action plans, including:

• Berkeley Springs
• Charles Town
• Chester
• Glen Dale, Marshall County
• Harpers Ferry
• Kearneysville, Jefferson and Berkeley counties
• Martinsburg
• Weirton

“It’s very critical that we include the community members with that local knowledge to determine the possible sources of PFAS,� Crowe said.

Crowe referred to an example Korbini gave a local resident revealing during USGS sampling that an empty field had been used for firefighting training — a revelation for samplers that yielded PFAS detection.

Extent of PFAS threat might be underestimated

A report released in March by the Physicians for Social Responsibility — a national public health advocacy group — suggested a hazardous substance designation for PFOA and PFOS could help address gas well pollution concerns in West Virginia. Observing that liability doesn’t require negligence under CERCLA, the report found hazardous substance designations for PFAS would allow impacted parties to more easily hold gas and oil companies accountable for cleanup costs.

The study suggested that presence of PFAS stemming from gas well operations in West Virginia could be severely underestimated, finding that gaps in state reporting rules could be resulting in a significant underrepresentation of the reality of PFAS use in West Virginia wells.

Between 2013 and 2022, oil and gas companies injected 1,912 horizontal gas wells in 15 West Virginia counties with at least one trade secret chemical per well, totaling almost 70 million pounds of unidentified chemicals, according to the report.

Many of those chemicals could be PFAS, the report found.

“Should only a fraction of the unidentified chemicals used in West Virginia’s oil and gas wells be PFAS, they could pose a significant threat to human health,� the report concluded.

Gas and Oil Association of West Virginia executive director Charlie Burd said West Virginia’s horizontal well operators rarely use PFAS as an additive in the modern development process.

‘None of us consented’

The EPA’s CERCLA designations for PFOA and PFOS followed its April release of the first ever national, legally enforceable drinking water standard for PFAS. The EPA estimates roughly 6% to 10% of 66,000 public drinking water systems subject to the rule may have to take action to meet the new standards.

When it comes to hazardous substance designations, Faber and other water quality advocates are confident that higher standards for PFOA and PFOS will mean safer communities.

“None of us consented to be polluted with PFAS, but all of us have PFAS in our bodies,� Faber said.