North Carolina is getting tougher on industries that pollute the state’s air and waterways with potentially carcinogenic per- and polyfluoroalkyl compounds, commonly known as PFAS or “forever chemicals.”
On Aug. 10, state Attorney General Josh Stein announced that he is starting an investigation into manufacturers and others that have fouled the state’s lakes, rivers and streams with PFAS.
Stein’s office declined to reveal what the investigation will entail, but it later confirmed that Stein has partnered with the national environmental law firm Kelley Drye & Warren. The firm, based in New York with offices in seven other states, says on its website that it is involved in more than 20 PFAS lawsuits across the country.
Three days after Stein’s announcement, the state Department of Environmental Quality, along with Cape Fear River Watch and the Southern Environmental Law Center, said it plans to take significant additional action against Chemours to compel the company to rid PFAS from the groundwater at the chemical company’s plant along the banks of the Cape Fear River in Bladen County.
Enforceable standards needed
While researchers, environmental activists and some state lawmakers applaud those actions, they say the efforts don’t go far enough to protect hundreds of thousands of North Carolinians from drinking tap water that has been contaminated by GenX and other PFAS.
What is needed at a minimum, they say, are enforceable statewide PFAS drinking water standards — known as maximum contaminant levels or MCLs — that would trigger a requirement forcing municipal water utilities to meet the new regulations.
The U.S. Environmental Protection Agency does not regulate PFAS. Its only standard is an unenforceable health advisory for two types of the compounds — perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) — at 70 parts per trillion in drinking water.
There are an estimated 5,000 types of PFAS, perhaps thousands more than that. More than 600 of them have been used commercially in the United States to make Teflon, food packaging, stain-resistant carpets, waterproof rain gear, firefighting foam and many other products since the 1940s. They are called forever chemicals because they don’t easily break down and can accumulate in the human body. Nearly everyone in the United States has some level of PFAS in their blood.
The EPA has proposed to set maximum contaminant levels for PFOA and PFOS in drinking water. The proposal came in February 2019 with the unveiling of the agency’s PFAS Action Plan.
Once the EPA sets a maximum contaminant level, that becomes the legal, enforceable standard for the highest level of the substance allowed in drinking water.
The plan also calls for designating all PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, known as CERCLA or Superfund. The designation would give states and the EPA much more power to force industries to clean up sites contaminated with PFAS.
But a year and a half after being proposed, neither of those initiatives has been enacted and it doesn’t appear that they will be anytime soon.
Dodging the question
Last year, U.S. Rep. Debbie Dingell (D-Michigan), introduced a bill that would have required the EPA to set drinking water standards for certain PFAS and designate all of them as hazardous substances within one year. Michigan also has a significant PFAS problem.
In September 2019, EPA Administrator Andrew Wheeler said Dingell’s one-year timeline wasn’t feasible. In May of this year, Wheeler told the Senate Committee on Environment and Public Works that the EPA could not set drinking water standards for PFOA and PFOS within a year.
And in August of this year, while speaking at a news conference in Fayetteville, Wheeler dodged the question of a timetable altogether.
“We’ve moved very quickly over the last year and a half but we’re not just focusing on passing new regulations, we are also focusing on getting it cleaned up where we find it, so we are actually looking at our existing authorities and what additional authorities we might need,” Wheeler said.
Wheeler’s comments in Fayetteville, which included a roundtable discussion on PFAS with federal, state and local officials, drew the ire of the Southern Environmental Law Center. The organization helped draft a consent order that forces Chemours to clean up its PFAS contamination.
In a statement following the roundtable, the organization called the PFAS Action Plan “feckless.”
“The plan has not resulted in any identifiable action in North Carolina, despite the state having one of the most severe instances of PFAS contamination in the country,” the statement reads. “There’s a reason that EPA can only point to its generic national plan when visiting North Carolina. The agency hasn’t done a single thing to improve the lives of North Carolinians.”
Some of the provisions in Dingell’s bill were moved into the National Defense Authorization Act for Fiscal Year 2021, which the House and Senate approved in July. While the act authorizes more money for PFAS studies and cleanup, it does not classify them as hazardous substances or set maximum contaminant levels.
Researchers in North Carolina are skeptical that the EPA will set maximum contaminant levels for PFAS anytime soon.
Linda Birnbaum, former director of the National Institute of Environmental Health, and Jamie DeWitt, a toxicologist at East Carolina University who has been studying PFAS for 15 years, said the EPA hasn’t regulated a hazardous chemical in decades. What, the two researchers ask, makes people think the agency will establish standards anytime soon?
In the absence of EPA action, Michigan and at least 12 other states have either approved their own maximum contaminant levels for PFOA, PFOS and other PFAS, or are in the process of doing so.
Michigan’s new regulations, which became effective on Aug. 3, are considered to be the most restrictive in the country for some substances. They set a limit on PFOA at 8 parts per trillion in drinking water and on PFOS at 16 parts per trillion. The state also approved limits on five other types of PFAS.
DeWitt sat on a Michigan scientific advisory panel whose research was used to help set the new standards.
A Michigan native, Dewitt said she doesn’t know exactly why Michigan is so far ahead of North Carolina in regulating PFAS. She said Michigan got a head start, and North Carolina’s involvement has been slowed by the coronavirus pandemic.
Michigan created a multi-agency task force to coordinate the state’s response and began testing public water supplies for PFAS in 2017, two years before North Carolina started similar testing.
DeWitt believes economics and politics are among the reasons that North Carolina has yet to approve maximum contaminant levels.
“But what those political factors are and what those economic factors are I don’t know,” DeWitt said, noting that she was speaking as a concerned citizen and not as a researcher. “Why else would we not regulate a substance that is exposing people and that has toxicological properties and is persistent. To me, it seems like something you would want to regulate to protect your citizens.”
Legislation goes nowhere
Shortly after becoming a Democratic state senator from Cumberland County, Kirk deViere became a co-sponsor of Senate Bill 518.
The bill, filed in April 2019, aimed to establish a PFAS task force to analyze PFAS compounds in the lower Cape Fear River basin, to identify their sources and the impact on human health, to set maximum contaminant levels and to provide replacement water for people whose wells have been contaminated.
The bill also sought the repeal of the so-called Hardison Amendment, which prohibits the DEQ from adopting stronger environmental standards than the federal EPA regulations.
The bill died in committee, along with at least five others introduced in 2019 that concerned environmental regulations.
“I cannot answer why the Republican Leadership in the Senate didn’t allow this bill to be heard in committee,” deViere wrote in an email. “It is unfortunate as this task force would help us better understand the overall impacts of PFAS in the Cape Fear River basin and is a step to protect North Carolinians from these pollutants.”
Birnbaum, the former head of the National Institute for Environmental Health, said she doesn’t understand why the legislature hasn’t done more, either.
“The legislature doesn’t actually regulate, but they’re the ones that make the laws,” Birnbaum said. “They could set a law for North Carolina for allowable levels if they wanted to. You don’t have to have the Department of Environmental Quality be the one that sets the laws.”
On May 22, state Rep. Ashton Clemmons (D-Greensboro) filed a bill patterned after those introduced in 20 other states that would not only set maximum contaminant levels for PFAS but also regulate two other probable carcinogens prevalent in North Carolina’s waterways; 1,4 dioxane and hexavalent chromium.
Four days after filing the bill, it was referred to the House rules committee, where legislation typically goes to die.