After passing the House, bill regulating PFAS in firefighting foam lingers in Senate

Rep. Pricey Harrison, a Guilford County Democrat, has co-sponsored several bills that would regulate toxic PFAS in North Carolina. (Photo: NCGA)

Lawmakers dedicated to eradicating “forever chemicals” from water supplies across the state filed three bills this session that would more stringently regulate PFAS, also known as per- and polyfluoroalkyl substances. Only one has made it out of committee and has a chance of becoming law.

While the larger, sweeping bills were aspirational, legislation regulating toxic fire foam did pass the full House in May, raising hopes that this year could be more promising. 

“You would have thought that after Gen X in the Cape Fear, that we would get more movement than we have,” said Rep. Pricey Harrison (D-Guilford), who has worked on PFAS legislation for years. “But we couldn’t even take a crisis and turn it into really strong legislation, so we’ve got these sort of incremental approaches.”

PFAS are a large group of human-made chemicals commonly used in industrial production, firefighting foams and consumer products. They have chemical properties which make them water-, oil-,  and grease- resistant, and difficult to degrade.

“PFAS don’t break down, they move from place to place, they accumulate in living organisms, and the ones we’ve studied show adverse health effects.” said Jamie DeWitt, associate professor of Pharmacology & Toxicology at East Carolina University.

Highest exposures have been documented in people who live near industries that use PFAS in their products and individuals whose drinking water is contaminated with high levels of PFAS.

PFAS have been termed “forever chemicals” because they persist in the environment for decades and are found in the organs, tissues, and blood of both people and animals. The amount of PFAS in an individual’s system increases with higher exposure. 

High levels of PFAS have been linked to higher blood cholesterol, increased risk of thyroid disease, and decreased vaccine response. They can also cause reproductive issues such as decreased fertility in women, increased risk of pregnancy complications, and lower infant birth weight.

“As a toxicologist who tries to understand how PFAS exposure affects the immune system, it’s surprising to me that more data aren’t available on their health effects,” DeWitt said.

The full House passed a bill banning the use of foam containing PFAS during firefighting training Rep. Ted Davis (R-New Hanover) is the primary sponsor. There are 13 co-sponsors, 11 of them Democrats and two Republicans. Harrison said she expects the bill to pass this session.

“We had this small bill to tackle this easy piece. That took a few years to get past the industry,” Harrison said.

 The bill, HB 355, would also require fire departments to report their use of aqueous film-forming foams (AFFF). PFAS is a major ingredient in AFFF, which are effective at extinguishing caused by flammable liquids. In December 2019, Congress directed the military to phase out the use of PFAS firefighting foam by 2024.

But in North Carolina, broader bills, including one that would impose an outright ban on PFAS within the state, Harrison said, were filed to be purely aspirational. The bill banning PFAS was also filed last session, but did not pass.

“Getting an outright ban of that chemical is going to be tough right now, in the current political climate,” Harrison said. 

Rep. Deb Butler (D-New Hanover) is the primary sponsor of HB 444, which would compel companies who discharge PFAS into public water supplies to provide permanent water replacements. 

Butler said the bill is a “natural extension” of a bill passed in 2018, which mandated that companies like Chemours provide alternative water supplies to those people with contaminated private wells.

However, the bill never got out of committee.

The bill’s intent is to reduce the cost and burden of providing safe water on the ratepayers of public water supplies. As authorities attempt to remove PFAS using new technology, this would save users of public water supplies increased water bills.

Butler uses Wilmington as an example. Currently, the Cape Fear Public Utility Authority is building a $50 million granulated carbon filtration system to get PFAS out of the public drinking supply. If passed, the bill would compel Chemours to pay for the technology. 

Harrison is the primary sponsor on two other PFAS-related bills — HB 502, calling for increased mitigation measures, and HB 503, which directs agencies like the Department of Health and Human Services and Department of Environmental Quality to study issues associated with PFAS contamination in areas like the Cape Fear River. It also requires the Office of State Budget and Management to estimate the costs of PFAS contamination in the state. 

Both stalled in committee and it is unlikely they will be taken up this session.

It’s been five years since the Wilmington Star News first reported that GenX, a member of PFAS, was found in the Cape Fear River, tipping off a state-wide investigation. Data in 2020 showed that the level of PFOS in the Cape Fear River Basin was more than 14 times greater than what the federal Environmental Protection Agency has advised is safe. 

The contamination was traced to Fayetteville Works, a manufacturing site that the Chemours Company has run since 2015. It was run by DuPont prior to that, when the plant began discharging GenX since at least the 1980s, when chemical giant DuPont owned the plant. 

The Department of Environmental Quality mandated Chemours to stop dumping toxic waste into the Cape Fear River, and the company signed a consent order in 2019 with treatment measures designed to stop 99% of residual PFAS from seeping into the river. Most recently, North Carolina environmental regulators fined Chemours almost $200,000 for failing to meet the terms of the consent order.

Neither DEQ nor the EPA has enforceable drinking water standards and regulations on PFAS.

Rep. Deb Butler, a Democrat, lives in New Hanover County where PFAS entered the drinking water supply. (Photo: NCGA)

How other states have regulated PFAS

Because of these chemicals’ prevalence and the negative effects, lawmakers in many states have proposed legislation to reduce the impact on their constituents.

New Jersey has taken aim at PFAS by passing their own Safe Drinking Water Act. The act specified that in the first quarter of 2021 all public water systems would begin monitoring two types of the compounds — PFOA and PFOS — and that levels would not exceed 13 parts per trillion.

In California, lawmakers have created comprehensive legislation of PFAS monitoring and notification. Chapter 4, Article 3 of the California Safe Drinking Water Act states that if the amount of PFAS in any water system is found to be above the set maximum level, those in charge of the water system must notify those who use said system within 30 days of the confirmed PFAS detection.

The act goes on to describe that if public water PFAS levels exceed 5.1 parts per trillion, the system providing the water must take specific steps to notify those affected. Steps include, sending both letter mail and email of the notice, as well as posting the notice online, in local newspapers, and around the area affected. The notice must also describe the confirmed detection, health risks of PFAS exposure and the populations that may be vulnerable.

Do these bills do enough?

Although other states have made strides towards reducing and banning PFAS, North Carolina still has a long way to go.

“To be realistic, I don’t expect a ban on PFAS to pass in North Carolina,” Rep. Harrison said “It might pass in California, but not here. But if we set a standard of what is a best-case scenario, maybe we’ll get close to that by at least limiting its use.”

Many environmental organizations in the state have felt similarly about the lack of action  for PFAS regulation. 

In October 2020, six North Carolina environmental groups petitioned the Environmental Protection Agency, through the Toxic Substances Control Act, to have the Chemours chemical company fund health studies on 54 types of PFAS that were released from its Fayetteville Works plant. The petition was rejected.

One of the groups from the 2020 petition, the Center for Environmental Health (CEH), stated that they believe “chemical makers have no right to expose [people] to concoctions that affect [their] family’s health.”

Right now the groups have their focus on the EPA and Biden Administration to overturn the rejected petition they filed.

Where do we go from here?

Butler warns there will be litigation pending on the bill requiring pollutants to pay for water replacements in public water supplies.

“It’s gonna take years and years and years and years, and that’s part of the polluters playbook,” Butler said. “They have very deep pockets. They can pay the lawyers forever.”

Butler fears that by the time people stop turning a blind eye to PFAS accumulation, it’ll be too late to clean them up. 

“We can all live, believe it or not, without Teflon,” Butler said. “I like the non-stick pan as much as anybody, but I don’t need them anymore.”

Ramishah Maruf is a journalism student at UNC-Chapel Hill.