Legal Corner: Billions to Clean Up Contaminated Water…Who’s Going to Pay for That?

By Katie Jones & Stephanie Biehl


Flint, Michigan, is now synonymous with “water crisis.” Unfortunately, it’s just the tip of the iceberg. In communities across the country, countless other water crises are unfolding, though with different chemical contaminants and, in many cases, clear fingerprints pointing to those who caused the problem.

The contamination of local drinking water supplies will cost billions of dollars to clean up, and a growing number of affected communities are now going to court to ensure that those responsible for the pollution are held accountable for the cleanup costs.

New generations of industrial chemical pollutants — often referred to as “emerging contaminants” because they have been largely unmonitored and unregulated — are now showing up in local water supplies. They include chemicals like per- and polyfluoroalkyl substances (PFAS) that have been called “Forever Chemicals” because of their persistence and bioaccumulation in the environment and, ultimately, the human body.

In April 2019, William Dichtel, an organic chemist at Northwestern University, told attendees at an American Chemical Society meeting that PFAS contamination “is a problem where our industry, our regulators and the entire chemistry enterprise could have behaved better” because “we have polluted the world with this stuff.”

As PFAS and other contaminants are appearing with increasing frequency, it’s no surprise that consumers, regulators, and elected officials from both sides of the aisle are demanding action. And in the absence of federal drinking water standards for these emerging contaminants, many states are stepping up to fill the void.

For example, New York State recently proposed a drinking water standard of 10 parts per trillion (ppt) for both PFOA and PFOS, two of the most widely produced and studied PFAS chemicals. At the same time, the State proposed a 1.0 part per billion (ppb) standard for 1,4-dioxane—another toxic contaminant.

According to the American Water Works Association, more than two dozen states have established – or are in the process of doing so – policies governing PFAS in drinking water or drinking water supplies. Many states are also setting standards for 1,4-dioxane and other previously unregulated contaminants.

These water crises make three things clear.

First, water providers are not to blame. Second, neither are their customers. Third, overwhelmingly, the manufacturers of these chemicals (and sometimes the commercial and industrial users of their products) are responsible for this pollution.

Manufacturers made huge profits selling products that they knew, or should have known, could pose a threat to human health. They also continued to reap those profits knowing their chemical products were likely to end up in water supplies.

As Northwestern’s Dichtel emphasized, the industry’s response to learning about the toxicity of PFOA and PFOS was “almost criminal.”

Similarly, Long Island newspaper Newsday reported earlier this year on the results of a nine-month investigation into aerospace giant Northrop Grumman Corporation’s operations near Bethpage, NY. The investigation, titled Decades of Deceit, found that Grumman “knew as far back as the mid-1970s that its toxic chemicals were contaminating area groundwater, but it kept secret crucial information that could have helped stop what is now Long Island’s most intractable environmental crisis.”

Worse still, Newsday reported that “the company made public statements that directly contradicted the alarming evidence it held, as it avoided culpability and millions in costs.”

No community water provider—or its customers—should ever have to pay for removing toxic contaminants put in their water supplies by someone else. But that’s just what many big corporations across America appear to want as they fight tooth-and-nail to avoid liability.

That’s also why so many cities, states, and water providers have gone to court, including several dozen public water providers in Long Island, where contamination from PFAS and 1,4-dioxane are particularly widespread.

Some of these efforts have already been successful. For example, Minnesota’s attorney general reached an $850 million settlement with 3M in February 2018, after suing the company for knowingly polluting the state’s waterways with PFAS.

While some states have begun providing emergency grants to help pay for the new treatment systems needed to reduce the contamination, this effort diverts limited tax dollars away from other priorities to pay for clean-up costs that should be borne by those responsible for the contamination in the first place. Moreover, those grants rarely cover the full costs to design, purchase, install, operate, and maintain those systems. That means the water providers and their customers are on the hook for the rest of the costs.

We live in a modern world where thousands of new chemical compounds are introduced into commerce every year, too often with risks the public does not know about.

But we also still live in a world in which we can and should return to fundamentals: When polluters make a mess, they should clean it up.


Katie Jones is a senior associate in the San Francisco-based law firm Sher Edling LLP. She represents public entities across the country, focusing on water contamination and the impacts of climate change. She was awarded the Landis Prize for Water Law while earning her degree from UC Berkeley School of Law.

Stephanie Biehl is a senior associate at Sher Edling, where she represents public entities focusing on water contamination and the impacts of climate change. She graduated cum laude from UC Hastings School of Law and has been named a Super Lawyers Rising Star throughout her practice.

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