Colorado lawmakers hoped this year to accelerate regulation of a group of man-made chemicals called per-and polyfluoroalkyl substances, which are often used in firefighting foam and have contaminated drinking water in communities across the state.
But a bipartisan bill to do just that was stripped of its most comprehensive elements during its first hearing at the legislature on Monday because of cost concerns from municipal water providers and wastewater facilities.
“We’ve made a lot of changes and a lot of concessions,” said state Rep. Tony Exum, a Colorado Springs Democrat and retired firefighter who spearheaded the bill. “… We just couldn’t get to a point where we could keep the bill as it was.”
The foam has been used for decades to extinguish jet fuel and other petroleum fires that are too strong for water alone. But exposure to the chemicals has been linked to long-term health impacts including increased risk of certain cancers, thyroid dysfunction and developmental issues in children.
As amended, House Bill 1119 allows the state’s Solid and Hazardous Waste Commission to establish a registration program for any facility or fire department that possesses firefighting foam containing PFAS substances, and to set standards for the capture and disposal of the chemicals.
The measure also adds an exemption to a law passed last year that prohibited the sale of Class B fire fighting foams with “intentionally added PFAS chemicals” by August 2021. Last year’s bill banned training with these foams, and implemented a $5,000 fine for first-time violators and $10,000 for repeat offenders.
The exemption will grant a carveout to Denver International Airport to allow the facility to use the foam for training and testing at structures that are used for the storage or maintenance of aircrafts. The Federal Aviation Administration requires DIA to use a special fire suppression system that uses PFAS.
“The FFA recognizes these PFAS foams are dangerous to public health and they are working to change their rules,” Exum said. “But until the rule change happens in the next few years, the hangars still have to use the foam. We don’t want to impose state fines on them for doing something that the federal government requires them to do.”
The bill passed unanimously after its first hearing in the House Energy and Environment Committee on Monday, but only after all the contentious sections were removed.
“This is how we were able to keep it bipartisan,” said Sen. Pete Lee, a Colorado Springs Democrat who is sponsoring the bill.
The removed sections would have required public drinking water systems to test their water for PFAS, and allowed the Department of Public Health and Environment to adopt and enforce regulations for appropriate standards. It also would have required wastewater systems to collect relevant data.
“When the bill was first introduced, it gave a lot of authority to the Department of Public Health and Environment,” said Sen. Dennis Hisey, a Republican from Fountain and one of the bill’s main sponsors. “And with these amendments, we are getting back to the original intention of the bill.”
Exum said it’s a step in the right direction, but more needs to be done.
“I think Colorado is serious about dealing with this, but we want to be open and fair and have these conversations,” he said.
“It’s a costly process to mitigate and to enforce, and to protect the citizens. But we have to ensure that we have clean water for the next generation and the generation after that,” he said.
How the problem came to light
Colorado’s PFAS problem rose to the forefront in 2016 when three communities south of Colorado Springs discovered that their drinking water likely had been contaminated for decades.
The underground aquifer that provides drinking water to nearly 70,000 residents in Widefield, Fountain and Security in El Paso County had dangerous levels of PFAS, which was traced to firefighting foam used at the nearby Peterson Air Force Base.
“Thousands of community members gathered at regional high schools and the water managers were essentially put on the defense to somehow come up with a solution for cleaning up the water,” said Eli Fahrenkrug, an assistant professor of chemistry at Colorado College.
Over the following weeks, water managers in the affected communities spent millions of dollars from their financial reserves to stop the chain of exposure and change water sources. Since then, eight more major PFAS-contaminated groundwater sites have been identified in Colorado, adding to the hundreds of sites scattered across the country.
“In less than a year, we piloted, designed and constructed North America’s first full-scale treatment facility for the mitigation of PFAS compounds utilizing ion exchange technology,” Lucus Hale, district manager for the Widefield Water and Sanitation District, wrote in an email.
“We have mitigated PFAS from over 1.3 billion gallons of water since this facility went online.”
But that’s only for the public drinking water system. There are many community members who still drink water from the same contaminated underground aquifer.
“They draw their water from their private wells, rather than through the city. So their exposure has not stopped since this happened,” said Fahrenkrug, who co-founded the Fountain Valley Water Project, a citizen-science initiative, in 2017 with his colleague Tyler Cornelius.
The PFAS family consists of over 4,000 substances that don’t break down in the environment, leading them to be called “forever chemicals.”
“These compounds didn’t exist on Earth until the early 1940s and 1950s, when they were made by companies like 3M and DuPont,” Fahrenkrug said.
“Now they exist everywhere on this planet,” he said, adding that 99.99% of Americans have some levels of PFAS compounds in their blood before they’re even born.
Currently, the U.S. Environmental Protection Agency does not set standards for PFAS in drinking water other than a non-binding health advisory with a limit of 70 parts per trillion. In January, a bill passed the U.S. House of Representatives that aims to regulate the chemicals, but it hasn’t been discussed in the Republican-led Senate, where it will likely face opposition. President Donald Trump also said he would veto the bill if it got to his desk, citing how much it would cost to regulate the contaminants.
In February, the EPA issued a preliminary regulatory determination for PFOS and PFOA, the two most-studied compounds of the PFAS family. The first of many steps in a long process for setting enforceable limits for the chemicals in drinking water.
States across the country are growing impatient, and have started to set their own standards.
“We believe it’s important to make sure that we have a proactive role to protect public health in the state of Colorado, because we’re not certain that the federal government will be able to deliver or deliver on time,” said John Putnam, director of environmental programs at the Colorado Department of Public Health and Environment.
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Putnam said the two sections that were scrapped from this year’s bill would have provided guidance when setting standards for PFAS, but the department still has the authority to do so under current law.
“It had the feasibility study and had some other milestones along the way that would provide some more guidance to us about how to go through that process and set those standards,” Putnam said. “Getting that guidance is very helpful to us, but it’s not critically necessary.”
Colorado has identified a handful of other sites where PFAS levels are above the health advisory, including Boulder Mountain Fire Protection District, Buckley Air Force Base, Fort Carson Military Base, Schriever Air Force Base, South Adams County Water and Sanitation District, Sugarloaf Fire Protection District, Suncor Oil Refinery and the Air Force Academy in Colorado Springs.
Some of the main sources of PFAS contamination have come from military bases, airports and fire stations that store or use firefighting foam used to snuff out fires fueled by oil, gasoline and jet fuels. Other sites include landfills, industrial sites, car race tracks and ski resorts.
The state public health department is trying to assess the scope of Colorado’s PFAS contamination and to break the chain of exposure. They’ve been working to test water systems around the state with their free-to-the-public 2020 Sampling Project.
“We are in the midst right now of doing that testing. We’re working with the water systems that cover about 80% of the population in the state of Colorado,” Putnam said.
One of the main challenges, he added, is that the department needs more environmental toxicologists. Currently, Colorado has one.
“Texas has 16, Minnesota has 38, California has 100. So that’s a place where we need to catch up,” Putnam said.
“The federal government traditionally has invested resources in toxicology and ecology and the other kind of disciplines that you would need to figure out what level is an acceptable or unacceptable level in water, but they haven’t been doing as much of that lately,” Putnam added.
Since the process for developing numerical standards for PFAS chemicals is slow, CDPHE is working to develop a narrative policy — a qualitative regulatory approach for limiting PFAS chemicals in surface and groundwater. The policy, which the department will present to the state Water Quality Control Commission in May, lays out how the department plans to implement regulations and standards for PFAS. CDPHE has been collecting comments from stakeholders about their draft proposal and they are posted online.
“We would have the power to say, if somebody’s discharging to water or groundwater, that they need to stop or get a permit or take other appropriate action,” Putnam said. “It’s a kind of first step that we can take, because we can do it quicker than a full standard, and without the full complement of resources.”
Some lawmakers are willing to wait for the feds to act
Two of the bill sponsors — Hisey and state Rep. Lois Landgraf — said they want to see federal standards set first.
Landgraf, a Fountain Republican, threatened to remove herself as a sponsor if the two sections related to CDPHE were not stripped from the bill.
“The state was getting ahead of itself,” Landgraf said.
“Right now, we need to be focusing on getting good data so we know what’s been going on. EPA has said it will set limits for PFAS. And when they do that there will be money made available for mitigation.”
The issue hits close to home for Landgraf.
“People forget we drink that water along with everyone else,” Landgraf said.
“I want that to be clear, it’s not good for anyone to be drinking chemicals in their water. But it’s all a balancing act. I wish I could wave a magic wand and get pristine water for everyone in the state. But what we need to remember is that it all comes with a cost.”
Hisey, who was an El Paso County commissioner when the Widefield aquifer contamination was discovered, echoed similar concerns.
He said the two sections removed from the introduced bill would have created a financial burden on water districts and wastewater treatment plants that were required to test and address contaminated water.
“There are so many moving parts, and it’s a much bigger issue that is not unique to Colorado. So that’s why I’m hesitant to insert CDPHE into the conversation,” Hisey said.
Liz Rosenbaum, a founder of the activist group Fountain Valley Clean Water Coalition, wants more done to address the long-term health impacts of PFAS exposure and regulation on manufacturers that create and use these chemicals.
“Our bodies have been used as giant filtration systems for these nasty chemicals against our will,” Rosenbaum said.
“They’re literally letting companies get away with murder through legislation because they’re so pro business,” she said, adding that “…this is never done to rich and affluent areas.”
Since 2016, Rosenbaum and community members have met almost every Thursday at the Fountain Public Library.
The group frequently invite guest speakers, state toxicologists, water district representatives and city council members to talk about PFAS contamination and how to stay educated and informed about the topic.
“When we started, we were just trying to figure out what happened to us,” Rosenbaum said. “Now, we’ve turned our anger into action.”
Fahrenkrug said the U.S. is lagging behind other countries when it comes to regulating and vetting manufactured chemicals before they are released.
“We can just create these things and use them and then retrospectively look at what the impacts are to the environment and to human health,” Fahrenkrug said.
He said another barrier for addressing PFAS contamination is testing. It’s expensive — each test costs between $300 to $400. And only two labs in the country have the capability to do it because the chemicals show up in such trace amounts.
For the past three years, Fahrenkrug has been collecting data and providing tests to community members.
The scientific data linking PFAS to health impacts is still emerging, which is what the EPA and other regulating authorities want before they implement standards.
Though there have been a handful of small-scale studies across the country, Fahrenkrug said the largest and most reliable PFAS study was published in May 2016 as a result of a class action lawsuit against DuPont in West Virginia.
“There was strong evidence to support a correlation, not necessarily causation, between exposure to PFAS compounds, and things like kidney cancer, testicular cancer, thyroid dysfunction and some neurological development in children,” Fahrenkrug said.
But the symptoms often take decades to develop, making it challenging to research and study.
“I think there is a lot to be determined about the true extent of exposure in this country just because symptoms for longer exposure to such trace levels of these chemicals can take decades,” he said.
In September, the national Centers for Disease Control and Prevention announced a $7 million, multi-site PFAS study to be conducted across the country. The Colorado School of Public Health and the University of Colorado Anschutz Medical Campus received $1 million to look at exposures in El Paso County.
“For decades, we were told that PFAS are not harmful, but we found out that it is. So we’re a little behind the eight ball, but I think Colorado’s moving in the right direction. We’re going to continue to have those conversations about PFAS,” Exum said.
“… We can’t wait on the federal government when our people are suffering.”
House Bill 1119 now heads to the House Finance Committee.