PFAS, Emerging Contaminants & How Polluters Are Paying Municipalities for Water Remediation Costs

By Ashley Campbell

Toxic manmade chemicals, like per- and poly-fluoroalkyl substances (PFAS) and 1,2,3-Tricholoropropane (TCP), are showing up in water systems across the US. It’s not new, but it has become more common, as municipalities are now increasing mandatory testing due to new state and federal regulations. These new regulations are also resulting in tighter maximum contaminant levels (MCL) in water systems as the health impacts of these toxic chemicals are dire.

What is PFAS?

Perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) are part of the PFAS family of about 6,000 chemicals used in fire retardants, as well as stain-, water- and grease-resistant products. These compounds were created in the 1930s for use in products such as hiking boots, rainwear, swimwear, cookware, and disposable food wrappings. PFOS and PFOA are considered “forever” chemicals that do not break down over time and they spread very easily in groundwater.

What is TCP?

TCP is a synthesized chlorinated hydrocarbon, that was used in the manufacturing of chemicals and pesticides. TCP was used between the 1950s and into the 1980s as an agricultural fumigant to control microscopic pests living in the soil of fields and orchards, primarily in the state of California. TCP was a byproduct and played no role in killing the crop-damaging nematodes. 

How Do These Toxic Chemicals Get Into Our Water?

PFOS and PFOA may enter drinking water supplies when products made with the substances are disposed of in landfills or when residues from household use of those products (e.g. washing PFAS-containing cookware or clothing) end up in wastewater. PFOS and PFOA were also used in firefighting foam, allowing it to enter drinking water supplies when the foam was used in training exercises at military installations, airports, or similar facilities. TCP is a persistent toxin, meaning it does not degrade easily in the environment, as the fumigants entered the soil, they slowly seeped in the water system with rain and irrigation. Ultimately these chemicals make their way into groundwater basins and eventually into our municipal water systems.

Toxic Chemicals Have Serious Health Implications

Although concerns about the impact of PFOA and PFOS on human health were known to manufacturers for decades, and traces of the chemicals have been found in human tissue samples collected since the 1970s by the U.S. Environmental Protection Agency, it is only over the last 20 years or so that regulators have started to become aware of the hazards of these substances.  Researchers have found potential links between the chemicals and a variety of adverse human health impacts, such as reproductive and developmental, liver and kidney, and immunological effects. Other studies have also found that certain PFAS caused tumors in lab animals. TCP was tagged as a carcinogen in 1999 by the state of California which lead to the strictest state MCL level in the country at 5 ppt. One ppt is the equivalent of one drop of impurity in 21 million gallons of water – in other words, TCP is very toxic.

Contaminant Detection

Detecting levels of these chemicals over the response levels generally causes water systems to take the contaminated water source out of use, and begin treating the water delivered, or providing public notification of the contaminants. Notification levels, on the other hand, are advisory in nature but do require suppliers either to take the contaminated source out of service or to notify the governing body of the municipality where the well supplies water of the presence of the contaminant. Although, contaminant levels vary from state to state, the absence of an MCL does not prevent recovery.

Remediation Costs

For most systems, getting contaminated sources back into compliance will require costly treatment measures that can run as high as hundreds of thousands or millions of dollars to build and maintain. Potential costs include building new wells and treatment facilities, the extension of service to impacted private wells, replacing water from other sources, and in some cases property damage. For some cash-strapped municipalities, these unexpected costs could prove catastrophic unless outside funding is secured.

Polluters Are Responsible

Over the last two decades or so, water systems have found success litigating against the manufacturers of products that contained TCP and, more recently, PFAS.  Some of these lawsuits, particularly earlier litigation over PFAS, arose out of the dumping of these chemicals into surface water or landfills by the manufacturers of products that contained them. The majority of these lawsuits, however, have focused on environmental contamination that resulted from the use of such products in their intended manner, claiming that the products were defectively designed in a way that risked contamination, or that the manufacturers failed to warn of such risks.

Lawsuits against manufacturers for groundwater contamination caused by their products usually rely on a legal doctrine known as “products liability.” Though the nuances can vary from state-to-state, this doctrine has been adopted by courts and legislatures across the country. Fundamentally, under the law of products liability, a manufacturer or seller is liable if a defect in the design of its product causes injury while the product is being used in a reasonably foreseeable way.

The legal precedence has been set that PFOA, PFOS and TCP are defective products under this liability doctrine.

Making a Successful Claim

Water providers interested in pursuing solutions to this toxic legacy via the courts usually begin the process by entering into a legal services agreement with a qualified law firm that specializes in environmental law. A specialty firm has the experience to lessen the workload and time spent on discovery. In some cases, filing in the federal court versus state court can lead to a quicker resolution – a good law firm wants to make this a quick and painless process for the water utility so they can stay focused on providing a necessary and vital service. SL Environmental Law focuses exclusively on water contamination law and has recovered more than $1 billion in settlements and jury verdicts for municipalities seeking compensation from polluters.

Legal Costs

Some law firms, including SL, will take on these cases on a contingency basis. That means that if the case is successful, the client reimburses the law firm’s costs and pays it a percentage of the settlement. If the case is not successful, then there is no payment due.  If they are willing to take your case, it is because your probability of success is very high. It is good news for cash-strapped municipalities and communities as they need not take on any financial risk while exploring and pursuing cost-recovery options.

Time Is of the Essence to Make Your Claim

The length of the statute of limitations, the starting point for measuring it, and other factors that may affect its application vary considerably from state to state, so water systems who are considering bringing suit against manufacturers or others responsible for the contamination of their supplies should consult with legal counsel at the first opportunity. Being among the first to take action may result in more generous settlements and also ensures that your lawsuit is scheduled into busy court dockets as early as possible.

The law exists to protect us and ensure justice prevails. In the case of this handful of manufacturers, they not only knew their products were harmful to humans, but they also covered it up while making billions in profit from the sale of these products every year, until the government banned their use. The law has already determined these manufacturers are accountable for this toxic legacy, meaning municipalities are justified in seeking compensation for water remediation costs so that ratepayers are not left with the bill.

Ashley Campbell is an attorney at SL Environmental Law Group, where she focuses her practice on environmental contamination litigation, representing clients before municipal boards, state committees, and state courts. She has drafted appeals to the New Hampshire Supreme Court, and briefs to the Ninth Circuit Court of Appeals and the U.S. Supreme Court.

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