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Introduced Version Senate Bill 485 History

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Key: Green = existing Code. Red = new code to be enacted

FISCAL NOTE

WEST VIRGINIA LEGISLATURE

2023 REGULAR SESSION

Introduced

Senate Bill 485

By Senators Trump, Smith, Caputo, Oliverio, Jeffries, Plymale, Rucker, Woodrum, Barrett, Queen, Woelfel, Chapman, and Hamilton

[Introduced January 26, 2023; referred
to the Committee on Agriculture and Natural Resources; and then to the Committee on Finance]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §22-11C-1, §22-11C-2, and §22-11C-3, all relating to identifying and abating health risks of perfluoroalkyl and polyfluoroalkyl substances (PFAS) discharged into source waters used for public drinking water; providing legislative findings; requiring the Department of Environmental Protection to write PFAS action plans to identify and address sources of PFAS for certain public water systems; requiring facilities using certain PFAS chemicals to monitor and report their use; setting forth other duties of those facilities; requiring the Secretary of the Department of Environmental Protection to propose updates to the numeric Public Water Supply human health criteria; and requiring necessary the Department of Environmental Protection to implement permit modifications and legislative rulemaking to effectuate the provisions herein.

Be it enacted by the Legislature of West Virginia:

 

ARTICLE 11C. PFAS PROTECTION ACT.

§22-11C-1. Legislative Findings.

 

(a) Legislative findings. -- (1) The Legislature recognizes the prevalence and health risks of perfluoroalkyl and polyfluoroalkyl substances (PFAS), which the U.S. Environmental Protection Agency (USEPA) has classified as contaminants. These chemicals are used in thousands of applications throughout the industrial, food, and textile industries and are an ingredient in some fire-fighting foams, food packaging, cleaning products, nonstick pots and pans, and various other household items. They are very stable and accumulate in the environment, and many are highly water soluble, easily transferring through soil to groundwater. They are known to cause cancers and other adverse health effects.

(2) During the 2020 regular session, the West Virginia Legislature passed Senate Concurrent Resolution 46 (SCR 46), which requested that the Department of Environmental Protection (DEP) and the Department of Health and Human Resources cooperatively propose and initiate a public source-water supply study plan to sample PFAS substances for all community water systems in West Virginia, including schools and daycares that operate treatment systems regulated by the West Virginia Department of Health and Human Resources.

(3) In compliance with SCR 46, the DEP and the Department of Health and Human Resources contracted with the United States Geological Survey (USGS) to conduct the PFAS study. This study was completed in 2022, with results for 279 sampled sites published in the USGS Scientific Investigations Report 2022-5067.

(4) According to this study, PFOA and/or PFOS was detected above the USEPA drinking water health advisory in 49% (137) of the sampled raw water sources (involving 130 community water systems) between 2019 and 2021.

(5)  In June 2022, the USEPA issued updated or final drinking water health advisories for four PFAS: perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorobutane sulfonic acid and its potassium salt (PFBS), and hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt ("GenX chemicals"). The updated advisory levels for PFOA and PFOS indicate that negative health effects can occur at near-zero concentrations.

(6) In August 2022, the USEPA proposed to designate PFOA and PFOS as hazardous substances because, when released into the environment, these chemicals present substantial danger to public health.

(7) On December 5, 2022, the USEPA issued guidance to state permitting authorities entitled "Addressing PFAS Discharges in NPDES Permits and Through the Pretreatment Program and Monitoring Programs".

(8) The USEPA has committed to establishing drinking water standards under the Safe Drinking Water Act for PFOA and PFOS in 2023.

(9) The USEPA has committed to publishing recommended human health water quality criteria under the Clean Water Act for PFOA and PFOS in 2024.

(10) It is imperative to identify the sources of PFAS detected in the raw water sources for community water systems so that these sources of pollution can be properly addressed, without shifting the burden and cost of reducing PFAS to public drinking water systems and their ratepayers. Identifying and addressing PFAS sources will also benefit people who rely on impacted private drinking water wells.

(11) It is in the public interest for West Virginia to reduce toxic chemicals such as PFAS chemicals in drinking water supplies to protect the health of West Virginians and strengthen the state’s economy.

§22-11C-2. Identification of PFAS sources where PFAS has been detected in raw water sources for public drinking water systems.

 

(a) To identify and address sources of PFAS in raw water sources of public drinking water systems, DEP shall:

(1) Write a PFAS action plan to identify and address sources of PFAS by July 1, 2024 for each public water system for which Scientific Investigations Report 2022-5067 has measured PFOA, PFOS, PFBS, or GenX chemicals in its raw water source above the practical quantitation limit and above USEPA’s applicable drinking water human health advisory;

(2) For each raw water source for which Scientific Investigations Report 2022-5067 has measured PFOA, PFOS, PFBS, or GenX chemicals above the method detection level, above USEPA’s applicable drinking water human health advisory, and below the practical quantitation limit, DEP shall initiate a study to sample the finished water of the associated public water system, after treatment, by December 31, 2023.

(3) For each public water system for which the measured PFOA, PFOS, PFBS, or GenX chemicals in the finished water is above the method detection level and above USEPA’s applicable drinking water human health advisory, whether or not the measured value is above or below the practical quantitation limit, DEP shall write a PFAS action plan to identify and address sources of PFAS for the public water system’s raw water source or sources by December 31, 2025.

(4) Perform outreach to ensure all relevant stakeholders in impacted areas are informed, educated, and have opportunity to provide input to DEP regarding PFAS sources and impacts. Stakeholder outreach will include, but is not limited to, residents, community members, business owners, public water systems, publicly owned treatment works, landfills, tribal governments, and local government officials and elected officials representing the impacted areas;

(5) Perform outreach to ensure the general public is informed about PFAS contamination and the work of DEP to identify and address PFAS sources;

(6) Recommend any necessary changes to West Virginia statutes or administrative rules to address the sources of PFAS chemicals; and

(7) Report annually on its activities to the Joint Legislative Oversight Commission on State Water Resources.

(8) In developing PFAS action plans, consult with other applicable units of state government, organizations representing West Virginia public drinking water systems, West Virginia public drinking water systems, and other relevant entities with knowledge related to identifying and addressing PFAS sources.

(b) The PFAS action plans, to the extent that data are available, shall identify the source or sources of PFAS in the raw water source, and regulatory and non-regulatory options for addressing each identified source of PFAS. The goal of these PFAS action plans is to ensure, to the maximum extent possible, that the costs of addressing PFAS found in community water systems are borne by the sources of the PFAS and not by the community water system or its ratepayers.

§22-11C-3. Self-reporting of PFAS manufacture and use, monitoring of PFAS discharges, and establishment of PFAS water quality criteria.

 

(a) No later than December 31, 2023, all facilities, including, but not limited to, chemical and manufacturing facilities, which manufacture, use, or have used one or more of the following PFAS chemicals in their production process since January 1, 2013, must report the use of these chemicals to the DEP:

(1) Any PFAS chemical found in any public water system’s raw water source in Scientific Investigations Report 2022-5067; and

(2) Any additional PFAS chemicals that the secretary determines are harmful to human health.

 (b) This reporting shall include the chemical name, the Chemical Abstracts Service (CAS) number, the amount used in each year from 2013 through 2023, and any additional information required by the secretary to ascertain sources of PFAS chemicals in West Virginia, and shall be provided in a manner and form prescribed by the secretary.

(c) For every facility that reports the use of one or more PFAS chemicals, and that discharges to a publicly owned treatment works, the secretary shall forward the information provided by the facility to the publicly owned treatment works within 30 days of receipt.

(d) For every facility that reports the use of one or more PFAS chemicals, at least quarterly monitoring of the self-reported PFAS chemicals shall be required within six months of notification by the facility, as follows:

(1) If the facility discharges to a surface water under a West Virginia/National Pollutant Discharge Elimination System permit, the secretary shall modify the facility’s West Virginia/National Pollutant Discharge Elimination System permit to require monitoring.

(2) If the facility discharges to a publicly owned treatment works under an industrial pretreatment program and the permit holder for the publicly owned treatment works has pretreatment authority, the permit holder for the publicly owned treatment works shall modify the pretreatment permit held by the facility that reports the use of one or more PFAS chemicals to require monitoring.

(3) If the facility discharges to a publicly owned treatment works under an industrial pretreatment program and the department has pretreatment authority, the secretary shall modify the pretreatment permit held by the facility that reports the use of one or more PFAS chemicals to require monitoring.

(e) Monitoring shall use laboratory and sampling methods approved by the USEPA as documented by the USEPA guidance to state permitting authorities entitled "Addressing PFAS Discharges in NPDES Permits and Through the Pretreatment Program and Monitoring Programs" dated December 5, 2022, or by relevant subsequent USEPA guidance or regulations. If two or more approved methods are available, monitoring shall use the method with the lowest detection level.

(f) For every facility that reports the use of one or more PFAS chemicals in accordance with paragraph (a) of this section, the secretary shall modify the facility’s West Virginia/National Pollutant Discharge Elimination System permit as directed by the USEPA guidance to state permitting authorities entitled "Addressing PFAS Discharges in NPDES Permits and Through the Pretreatment Program and Monitoring Programs" dated December 5, 2022 or by relevant subsequent USEPA guidance or regulations.

(g) After the USEPA establishes final water quality criteria under the Clean Water Act for any PFAS, DEP shall propose adopting such criteria by rule in the next possible legislative session in accordance with §29A-3-1 et seq., §22-11-31, §22-11-32, and §22-11-33 of this code.

 

NOTE: The purpose of this bill is to create the PFAS Protection Act. The bill: requires the DEP to identify and address PFAS sources impacting public water systems; requires facilities that have recently used PFAS chemicals to report their use to DEP, requires permits to be updated to require monitoring of PFAS chemicals for facilities that report their use; and requires DEP to propose rules to adopt water quality criteria for certain PFAS chemicals after they are finalized by the USEPA.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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