Colorado enacts arsenal of laws to stop “forever chemicals”

In a major push to protect the public, this month a new regulation requiring Colorado manufacturers, wastewater treatment plants and others to monitor PFAS, the so-called “forever chemicals,” takes effect.

It is one of several new laws and regulations the state has enacted in the past four months related to PFAS. In taking these actions, Colorado becomes one of 12 states that have opted to move out ahead of the U.S. Environmental Protection Agency, establishing their own regulations, monitoring sources of the chemicals, and setting limits on how much of the various contaminants can exist in water supplies before they pose a threat to public health.

Found in such common substances as Teflon, Scotchguard and firefighting foam, there are thousands of PFAS, or per- and poly-fluoroalkyls, in use today. They’ve been linked to cancer, kidney disease and other serious illnesses and are considered particularly dangerous because they build up in human tissue.

Military sources

Colorado is home to several military bases where the use of PFAS firefighting foam has resulted in groundwater contamination. Security, Fountain and Widefield in El Paso County have seen widespread contamination, a fact that has local activists applauding the state for taking action to monitor the chemicals and stop them from entering Colorado’s water.

“We did it!” said Liz Rosenbaum, one of the founders and organizers of the Fountain Valley Clean Water Coalition, a local group which has advocated for such a policy for four years. “The most important thing was hearing the Water Quality Control Commission [the state entity that sets water quality rules] validate that the concerns of the people are more important than industry,” said Rosenbaum.

Colorado’s new PFAS regulatory push comes on the heels of three new state laws also designed to protect the public. The laws will, among other things, ban toxic firefighting foam, dramatically increase fines for polluters, and provide funding for PFAS cleanup.

But cities, wastewater treatment utilities and some industries are deeply worried the new regulations will cost taxpayers hundreds of millions of dollars and lead to legal battles over the levels of PFAS allowed and liability for cleanup.

New limits

The new water quality regulation administered by the Colorado Department of Public Health and Environment sets levels considered “toxic” for five different PFAS compounds and four additional “parent constituents” that could degrade into PFOS and PFOA.

Now, each month, entities that discharge water to Colorado’s streams or lakes—including industrial manufacturing and food processing facilities, oil and gas refineries, wastewater treatment and purification plants, and others—must test levels of 25 different PFAS constituents in that discharge and report results to the state.

If PFAS levels exceed those identified in the new policy, dischargers will have several years to control the chemicals at the source. But after that time period is up, the state health department could revoke permits for dischargers who remain out of compliance. The policy also outlines a new protocol for monitoring and testing PFAS.

A tougher stance

Under an EPA federal health advisory enacted in 2016, 70 parts per trillion is considered to be the maximum level of PFOA and PFOS that is safe to drink.

But other states have set more stringent maximum contaminant levels. Vermont, in 2019, limited contamination to a combined 20 ppt for five different PFAS.

In Michigan, which has the strictest rules in the country, seven different PFAS are regulated and the maximum contaminant level is as low as 6 ppt for one of the compounds.

Under Colorado’s new policy five different PFAS are regulated, with maximum contaminant levels set at 70 ppt for PFOA, PFOS, and PFNA combined; 700 ppt for PFHxS; and 400,000 ppt for PFBS.

Colorado’s policy differs from those of Vermont and Michigan because PFAS will be measured at the point of discharge, not in drinking water itself. Whether Colorado will eventually adopt standards for drinking water isn’t clear yet.

 Wastewater worries

This has Colorado wastewater treatment operators concerned that the new policy may have unintended consequences, including much higher costs for water treatment.

The Denver-based Metro Wastewater Reclamation District, the largest wastewater operator in Colorado, declined to comment for this story, but, according to a report by Colorado Public Radio, the utility estimates that it could cost ratepayers more than $700 million for wastewater plants to clean up the chemicals.

Roy Heald is manager of the Security Water and Sanitation District, and he said ratepayers, at some point, will run out of cash.

“What’s always been one of my concerns is our water ratepayers,” Heald said.

The district’s customers have already seen rate hikes to support PFAS-related drinking water adaptations. In 2016, when contamination from the firefighting foam used at Peterson Air Force Base came to light, the district began importing water, primarily from Pueblo Reservoir, to meet the needs of its residents. That involved building new pipelines and purchasing extra water from Colorado Springs Utilities. By 2018 residents saw a 15 percent rate increase, followed by another 9.5 percent increase in 2019.

“We have to recognize the costs involved,” Heald said. “If our customers can’t afford our services, what then?”

Is the science ready?

But cost isn’t the only concern. No one’s sure exactly how to clean up the contamination, or whether the science is mature enough to inform what contaminant levels are safe.

Concerns ran so deep prior to passage of the new policy that the City of Aurora and a group of utilities tried to stop the Colorado Water Quality Control Commission from approving the policy, a move that ultimately failed.

The biggest concern for wastewater treatment operators continues to be the possibility that they could be required to clean up contamination, rather than the polluting industries themselves.

“The regulated community wished that the solution had more emphasis on the source control piece,” said Dan DeLaughter, regulatory programs manager for South Platte Water Renewal Partners, a wastewater reclamation facility just south of Denver that serves Englewood, Littleton, and some surrounding areas. “What I’d like to see is preventing things from entering the consumer product stream before they become a problem.”

Nicole Rowan, who manages the state health department’s Clean Water Program, said that wastewater treatment plants won’t have to face PFAS limits for another five to nine years as the state collects its initial round of data, giving them time to figure out how to track the pollutants and eliminate them at their source, before they enter drinking water or wastewater.

State action

Thanks to a statewide monitoring study completed in June, state officials have identified some contaminated water sources with PFAS levels above EPA’s advisory level of 70 ppt. Security Water and Sanitation District, Stratmoor Hills Water and Sanitation District in El Paso County, and Sugarloaf Fire District in Boulder County were already known to contain high levels of contamination and are either not using their water or are treating it. The new location, Fourmile Fire District in Teller County, had high PFAS levels in one groundwater well, though the district said that water from the well is not used for drinking. No drinking water sampled in the study tested above EPA’s advisory level.

However, if Colorado were to use Vermont’s standards of 20 ppt, as some environmental groups have suggested it should, a handful of public drinking water systems would be out of compliance including locations in Sterling, Rocky Ford, Frisco, Brighton, Keenesburg, Lochbuie, Evergreen, Golden, Florissant, Guffey, Boulder and Bailey.

This work is part of the state health department’s PFAS Action Plan, which it approved in September 2019. In addition to the monitoring study, other action plan items include a survey of fire departments to learn where, how and what type of PFAS firefighting foam they are using and research into PFAS disposal options, among other tasks.

Recent state legislation includes last year’s House Bill 1279 which prohibits the use of Class B firefighting foams, restricts the sale of certain foam, and requires the notification of chemicals in protective equipment.

House Bill 1119 clarifies where, and in which aircrafts, PFAS firefighting foam may be used, requires the creation of a registry for those using or storing PFAS, and sets aside just over $43,000 for the hazardous materials and waste management division of the state health department.

Senate Bill 218, signed into law at the end of June, creates a PFAS cash fund, PFAS grant program, and PFAS takeback program, and also supports the Colorado State Patrol and Department of Transportation in regulating hazardous materials by charging $25 for every fuel tanker that drives through Colorado, maxing out at $8 million in fees each year. The Colorado Department of Revenue began collecting those fees on September 1.

House Bill 1143 was signed in early July, raising fines for polluters from $10,000 per day in Colorado to $54,833 per day.

“Before, industry was like, ‘Oh, we’ll pay the fine, that’s cheaper than fixing the problem,’” Rosenbaum said. “Now it’s cheaper to do the right thing.”

The state health department is beginning to assess where firefighting foam is so that it can move forward with its PFAS takeback program and is waiting for that money to accumulate so it can begin funding more sampling, investigating sources of PFAS, and funding drinking water treatment, says Ron Falco, manager of the state’s Safe Drinking Water Program. “It will take a while to build funds,” Falco said.

Rosenbaum said the state has a lot of expensive “catch-up” work to do.

“This is going to cost a lot of money for a long time,” she said. “This is a forever chemical. These are the consequences.”

Caitlin Coleman is the Headwaters magazine editor and communications specialist at Water Education Colorado. She can be reached at caitlin@wateredco.org.

Fresh Water News is an independent, nonpartisan news initiative of Water Education Colorado. WEco is funded by multiple donors. Our editorial policy and donor list can be viewed at wateredco.org