Colorado enacts ‘forever chemical’ cleanup measures as federal action falls short

Even in a shortened session, Colorado legislators managed to pass a pair of bills that will help the state kickstart cleanup of so-called “forever chemicals” that have contaminated drinking water in communities around the state.

Under Senate Bill 20-218, the state will create a fund to help communities detect and clean up contamination from perfluoroalkyl and polyfluoroalkyl substances — synthetic chemicals found in firefighting foam that are known as PFAS. The chemicals have been found in public drinking water sources, including high-profile contaminations in Colorado Springs and Boulder County, and have been linked to cancer, fertility problems and developmental delays. Besides firefighting foam, the chemicals are also found in certain nonstick and waterproof products, including cookware, food packaging and fabrics.

The cleanup fund will be seeded with a $25 per truckload fee on manufacturers of fuel products who either manufacture or distribute such products in the state, with fees capped at $8 million per company. That fund would support a PFAS substances “takeback” program, seed research into sources of contamination, and support regulation of the transport of hazardous materials.

A second bill, House Bill 20-1119, updates a 2019 bill that banned firefighting foams that use PFAS. The update instructs the state to create a registration program for facilities and fire departments that have substances containing PFAS on its premises. It also amends the ban by allowing some airports, including Denver International Airport, to use PFAS foams for training and testing until a replacement is approved by the Federal Aviation Administration.

The fact that the two bills emerged from a truncated legislative session that included a 10-week break for the COVID-19 pandemic shows how much of a priority PFAS contamination is for legislators, especially during the pandemic, said state Sen. Pete Lee, a Colorado Springs Democrat and sponsor on both bills.

“These are health and safety bills of significant importance,” Lee said. “We need to go after this chemical and get structures and systems in place to deal with it and address its impact.” SB-218 passed the Senate in a 20-14 vote, and it passed the House 44-21; HB-1119 passed the House in a 61-3 vote and was approved by the Senate unanimously. Gov. Jared Polis signed the bills into law this week.

PFAS contamination emerged as an issue in the state in 2015, when the communities of Widefield, Fountain and Security in El Paso County detected levels of contamination in drinking water well above federal limits. The chemicals have been linked to firefighting foam used at Peterson Air Force Base (the foam is used for petroleum fires that cannot be put out by water alone). The chemicals are notoriously persistent and cannot be removed from drinking water by boiling.

Findings of state tests performed by the Colorado Department of Public Health and Environment released in June did not find PFAS levels in drinking water that violated a federal health advisory, but they did identify elevated levels in some groundwater sources, including the mouth of Sand Creek in Commerce City, where many industrial sites treat and dump wastewater. The new legislation, on top of the 2019 bill, positions Colorado as one of the state leaders in dealing with PFAS, which has not been the subject of significant action from the federal level despite growing evidence of widespread contamination in communities around the country. A 2019 report by the Washington, D.C.-based Environmental Working Group found contamination in drinking water systems serving an estimated 19 million Americans.

An action plan released by the U.S. Environmental Protection Agency in 2019 proposed new methods for testing for certain PFAS in water and taking steps to address groundwater contamination, and the agency began preliminary steps to regulate two varieties in February. But advocates are underwhelmed by the plan, because it did not lay out plans to set drinking water standards or tighten the agency’s non-binding health advisory.

In the 2019 National Defense Authorization Act, Congress required more monitoring of PFAS in drinking water near military bases and banned military use of firefighting foam with PFAS by 2024. The U.S. House passed a more sweeping PFAS action bill in January, but it is unlikely to see Senate action.

“The role of states has been indispensable in this,” said Melanie Benesh, a legislative attorney with Environmental Working Group. “In the absence of federal leadership, states have shown how to regulate these substances and move the markets. EPA should be taking steps to catch up to the states.”

Other states, including New Hampshire and Michigan, have set limits on the amount of PFAS that can be in drinking water, a step Colorado has not yet taken. The state is instead working on a more nimble “narrative policy,” which would allow regulators to limit contamination without setting a numerical standard.

The state’s efforts are focused on identifying sources of contamination and removing them. The new reporting requirements under HB-1119 will help give the state government a better sense of the scope of contamination and how to work with industries to remove them from circulation.

Kelly Sloan, a lobbyist representing the Colorado Aviation Business Association, said the industry supports removing firefighting foam but needed a carveout, because some airports need the foam for insurance purposes until a replacement is approved by the Federal Aviation Administration.

The new fee on fuel manufacturers will kickstart efforts to remove sources of contamination and help ensure that affected communities have the means to clean up wells and reservoirs.

“We’ve seen from this legislature that the health and safety of communities, especially frontline communities and communities of color, is a priority,” said Katie Belgard, government affairs director for Conservation Colorado. “COVID has laid bare so clearly the disparities in these communities and anything that addresses the health of these communities.”