Clean Water Network asks EPA to test ECUA wells

ecua logoEditor’s Note:  The U.S. Environmental Protection Agency, May 19, announced new drinking water health advisory levels for perfluorinated chemicals, or PFCs.

New levels – .07 parts per billion for PFOA and PFOS, are lower than the old levels of .4 and .2 ppb.  The new numbers reflect an assumption of lifetime exposure, versus intermittent use.

The levels are not legally binding.  Clean Water Network of Florida is asking EPA to test ECUA wells to determine PFC levels in local drinking water.  CWN forwarded the following letter to EPA:

by Clean Water Network/Linda Young

May 20, 2016

Ms. Gina McCarthy, Administrator
US Environmental Protection Agency
1200 Pennsylvania Ave. NW
Office of the Administrator 1101A
Washington, DC 20460

Re: New drinking water health advisory levels for the industrial chemicals PFOA and PFOS.

Dear Ms. McCarthy:

Congratulations to you and your agency for the new drinking water health advisories for the industrial chemicals PFOA and PFOS. It is clearly a step in the right direction and many people, including myself, look forward to when EPA changes this new non-regulatory guidance to enforceable regulatory limits. In some states, and some local utilities, the guidance will trigger action where these chemicals are found. Your report labels them as “human health hazards” which should motivate all public officials to take every possible step to protect citizens from exposures to these chemicals. However, as you can see, I live in Florida and our state government is in the process of revising our surface water quality standards to allow MORE carcinogens and human-health based toxics to be discharged into our drinking water supplies, shellfishing, swimming and fishing waters. So the likelihood of state government action in response to your new guidance is very unlikely.

In Escambia County Florida there is known contamination of the drinking water aquifer (sand and gravel) with PFOA and PFOS. In 2009 the Emerald Coast Utility Authority (ECUA) filed suit in federal court against the 3M Company, Solutia, DuPont, et al for contamination of its drinking water wells with PFOA and PFOS. Eventually a Motion for Summary Judgment filed by the defendants was granted because ECUA failed to demonstrate an injury in fact for the purposes of Article III standing.. In the Final Order, the judge wrote:

“The relevant showing for purposes of Article III standing, however, is not injury to the environment but injury to the plaintiff.”). It is undisputed that the levels of PFOA and PFOS at the time this suit was filed were compliant with EPA provisional advisories. ECUA has not established that it is in any way compelled to monitor the chemicals or change its filters absent the EPA or the FDEP requiring such action, which neither has done. In fact, at the time this suit was filed, neither agency had promulgated binding regulations concerning these chemicals.”

Because your new Health Advisory is “non-binding” the citizens of Escambia County and sometimes Santa Rosa County will continue to drink and bathe in water contaminated with these chemicals while being told by ECUA not to worry that their water is meeting all state and federal drinking water regulations. Which is technically true, but very misleading.

We know that all of ECUA’s wells are contaminated with PFOA and PFOS because they admit this in their lawsuit. Again, this is taken from the Final Order in the case:

“ECUA’s counsel stated that the preliminary results of recent testing show PFOA or PFOS in every well with levels exceeding the EPA’s PHA (provisional health advisory levels) in one particular well.”

While many community water supplies contain these chemicals due to their widespread use in consumer products and fire-fighting, ECUA’s wells are exposed to a secondary, more serious exposure threat from the deep-well injection system in place at the former Solutia/Monsanto chemical plant, now owned by Eastman Chemical Company. In the trial,
ECUA presented documents showing that Solutia deep-well injected chemicals that would break down into PFOA and PFOS:

“Defendant Solutia has a manufacturing plant in Escambia County; its annual report for the year ending December 31, 1997, identified the Pensacola plant as the world’s largest integrated nylon manufacturing plant. ECUA contends that Solutia manufactured and sold a variety of nonstick products in Escambia County that degraded into PFOA or PFOS. More specifically, ECUA identifies Solutia documents containing a description of specific chemical tests, including one containing perfluouroalcohol alkyl condensate, that were performed at its Pensacola facilities. (Doc. 143, Exhibit E, Exhibit H.)[7] ECUA *1220 provided the declaration of Dr. Nicholas Cheremisinoff, a chemist who states that, “within scientific certainty,” the chemicals described in Solutia’s testing documents “will degrade into PFOA.” (Doc. 143-12, at 7.) ECUA also identifies documents wherein Solutia describes Pensacola waste disposal procedures through deep well injection after biodegradation. The record demonstrates that until at least 2003, the EPA and the FDEP permitted Solutia to dispose of wastewater in this fashion.”

In fact, the chemical facility formerly owned by Solutia/Monsanto is still using deep-well injection to dispose of its chemical waste products. I believe their current permit allows them to inject about three to four million gallons per day into the Floridan aquifer.

During the trial, ECUA argued that they are required to test for PFOA and PFOS and to filter out or mix their water in order to reduce concentrations. The court disagreed:

“ECUA suggests that Florida Administrative Code sections 62-550.330 and 62-550.521 require public water suppliers, like ECUA, to test and in some situations to remediate unregulated contaminants. These provisions, ECUA contends, mandate ECUA to test and monitor for PFOA and PFOS and thus supply a legally protected interest that defendants have invaded. The court disagrees. Section 62-550.330 mandates that “no contaminant which creates or has the potential to create an imminent and substantial danger to the public shall be introduced into a public water system.” Fla. Admin. Code § 62-550.330. At oral argument, plaintiff’s counsel suggested that this provision mandates action from water suppliers. However, section 62-550.521 and relevant Florida statutes suggest otherwise. Section 62-550.521 of the Florida Administrative Code requires water suppliers to notify the FDEP of confirmed unregulated contaminants in the water. After notification, the FDEP and the State Health Officer will decide whether the unregulated chemical presents an unreasonable risk to health and accordingly decide whether to direct corrective action including additional monitoring. See Fla. Admin. Code § 62-550.521. This code section plainly indicates that after a water supplier has notified the state of an unregulated contaminant, it has no further duty until and unless the FDEP orders action. See also Fla. Admin. Code § 62-550.300 (“Public water systems shall take necessary corrective action approved by the Department to meet all applicable MCLs, MRDLs, and treatment technique requirements.”); Fla. Admin. Code § 62-550.400 (water suppliers shall test for unregulated contaminants when and as directed by the EPA). Further, Florida Statute § 403.853(7) limits mandatory water testing to contaminants for which either the EPA or the FDEP has set a MCL or for which the EPA or the FDEP “has *1230 established a correlation between pollution concentration and human health effects.” Fla. Stat. § 403.853(7). Similarly, Florida Statute § 403.855 provides that when the FDEP receives information that a contaminant is entering a public water supply and presents an imminent and substantial danger to the water supply, the department may take actions it deems necessary to protect the public health. Fla. Stat. § 403.855 (emphasis added). Considered together, these regulations and statutes make clear that public water suppliers in Florida are only required to monitor or test unregulated contaminants when the FDEP or the EPA instructs them to do so. The EPA maintains a PHA concentration for PFOA and PFOS above the level of either chemical in ECUA wells at the time this suit was filed, and thus the EPA has not forced ECUA action. ECUA has provided no information or evidence indicating that the FDEP has classified PFOA or PFOS as a contaminant requiring such testing and monitoring or that the department has instructed ECUA to instigate any such measures.”

So you can see why it is unlikely that any state action will be taken. Your “advisory” is not mandatory and the state is legally allowed to pick and choose when and where it wants to require greater protection than EPA requires. To date, I know of no incidences where the state has taken more protective actions than EPA in regards to drinking water rules.

I notice also in your report that the Department of Defense is using your new Health Advisory levels to determine risk to human health from past contamination. ECUA’s lawsuit did indicate that there was contamination from NAS Pensacola:

“3M shipped AFFF to Navy facilities in Escambia County, including Pensacola Naval Air Station. The Navy patent on AFFF, under which 3M produced the product, called for the use of PFOA or PFOS during production. In 2000, 3M announced it would no longer manufacture products based on perfluorooctanyl chemistry and in 2002 it stopped selling AFFF to the Navy. ECUA contends that defendant Solutia used 3M products in Escambia County during this period and provides as evidence a Solutia company email discussing alternatives “in light of 3M’s recent announcement.” (Doc. 143, Exhibit F.) ECUA alleges that the Navy used AFFF in joint exercises with civilians at the Pensacola Regional Airport. ECUA also alleges that 3M negligently instructed users to dispose of AFFF by washing it into the soil and that such practices contaminated the Sand-and-Gravel Aquifer and ultimately contaminated the water in ECUA wells.”

It is my understanding from your report that where the DoD finds PFOA or PFOS above the EPA Health Advisory level, then DoD will work with local communities to provide alternative drinking water supplies. I hope we can depend on that.

In summary, here is my concern:

1. It is a known fact that PFOA and PFOS are contaminating every drinking water well in Escambia County. Some of it may be captured by carbon filters that are used for some of ECUA’s wells, but some of these chemicals get through the filters and apparently not all wells have filters.
2. It is unlikely that neither ECUA nor the State of Florida will take ANY action to do further testing or to alert the public that these hazardous and carcinogenic chemicals are in their drinking water – possibly at levels above your Health Advisory limits.
3. As you document in your report, these chemicals are known to cause: testicular cancer, kidney cancer, thyroid disease, preeclampsia, ulcerative colitis and high cholesterol in humans. For PFOS, the report notes, studies of lab animals exposed to the chemical reported “developmental effects (decreased body weight, survival, and increased serum glucose levels and insulin resistance in adult offspring), reproductive (mating behavior), liver toxicity (liver weight co-occurring with decreased cholesterol, hepatic steatosis), developmental neurotoxicity (altered spatial learning and memory), immune effects, and cancer (thyroid and liver).”
Your report also acknowledged research on human populations that has found associations between PFOS and immune suppression, thyroid disease, high cholesterol, and reduced fertility. It also acknowledged a possible connection between PFOS and bladder, colon, and prostate cancer.

For PFOA, the research included studies on monkeys, rats, and mice showing “developmental effects (survival, body weight changes, reduced ossification, delays in eye opening, altered puberty, and retarded mammary gland development), liver toxicity (hypertrophy, necrosis, and effects on the metabolism and deposition of dietary lipids), kidney toxicity (weight), immune effects, and cancer (liver, testicular, and pancreatic).”

The new health advisory for PFOA was also based on human studies, which showed “associations between PFOA exposure and high cholesterol, increased liver enzymes, decreased vaccination response, thyroid disorders, pregnancy-induced hypertension and preeclampsia, and cancer (testicular and kidney).” Your report noted that in humans “the developing fetus and newborn is particularly sensitive to PFOA-induced toxicity.”

Therefore, I am requesting that your scientists at the EPA lab in Gulf Breeze, FL to test ECUA’s wells for PFOS and PFOA. As you are aware I’m sure, the laboratory is a primary research facility of EPA’s Office of Research and Development National Health and Environmental Effects Research Laboratory. They are staffed with experts in the field, they are respected in the community and they have the equipment (I believe) to do the analyses. Otherwise I am afraid that this situation with the drinking water supply will continue to be ignored.

I look forward to hearing from someone on your staff regarding this request and I hope that in the near future Congress will release the necessary funding for EPA to fully adopt drinking water regulations for the hundreds of chemicals for which you have issued “health advisories”.


Linda L. Young
Executive Director


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