By Michael DiGiannantonio
The U.S. EPA has released its proposed maximum contaminant levels (MCLs) for Perfluorooctanoic acid (PFOA) and Perfluorooctane sulfonate (PFOS) – two common types of per- and polyfluoroalkyl substances (PFAS). Under the proposed MCLs, drinking water utilities across the country would be forced to respond if concentrations are found in excess of 4 parts per trillion (ppt) by either taking the contaminated sources out of service or treating the contaminated sources.
EPA also announced this week it is proposing to regulate four other PFAS – PFNA, PFHxS, PFBS, and GenX Chemicals – as a mixture.
PFAS is so ubiquitous that water systems that test for it tend to find it – this has proven to be the case in states that already have PFAS MCLs, such as California, Massachusetts and New York. As water providers across the nation discover these contaminants in relative unison, the demand for treatment technologies and infrastructure upgrades are likely to rise. Large, unexpected costs are hard for water utilities to manage as they are already tasked with doing more with tightening budgets.
“We haven’t really seen a contaminant with such a combination of dangerous attributes before. It is scientifically established that exposure is dangerous even at very low concentrations,” said Ken Sansone, partner at SL Environmental Law Group. “The contaminant is incredibly widespread because it has been used in so many different products for decades and PFAS does not break down naturally. The new MCLs are a clear indication of these facts, and that we likely have a public health emergency.”
If a chemical is toxic, persistent and bioaccumulates, meaning the body’s tissue absorbs the substance faster than it can be eliminated, it fits the criteria for a hazardous substance. The Environmental Protection Agency (EPA) has already announced a proposed designation for PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Handling and disposing of hazardous substances is costly and require a certain level of expertise. Unfortunately, PFAS is lining up to be an expensive environmental disaster of historic proportions.
On Jan. 6, 2023, the EPA announced the automatic addition of nine (PFAS) to the Toxics Release Inventory (TRI) list, another indication that the regulatory process for these chemicals is ramping up and there is more to come. UCMR 4 already required testing for a number of PFAS substances, but under UCMR 5 29 more PFAS substances will need to be tested. This means that water providers who tested last time and didn’t have contamination above the level may now find other compounds at higher levels.
These new federal standards are coming on the heels of more than a dozen states already enacting their own PFAS MCLs. And, courts across the country are already ruling in favor of holding PFAS polluters accountable. Judge Richard Mark Gergel of the United States District Court for the District of South Carolina, who is overseeing the aqueous film forming foam (AFFF) multidistrict litigation, denied 3M’s attempt to evade liability by claiming government contractor defense. 3M was also unsuccessful in invalidating the New York Department of Health’s MCL of 10 parts per trillion for certain kinds of PFAS contamination in drinking water supplies in a recent rejection by the State of New York Supreme Court.
PFAS is so ubiquitous that water systems that test for it tend to find it – this has proven to be the case in states that already have PFAS MCLs, such as California, Massachusetts and New York.
Who is Responsible for the Cleanup?
Unless the manufacturers responsible for this pollution are held accountable for the cleanup, the billions of dollars to remove PFAS will be a burden borne by water systems and their ratepayers, who have also likely been exposed to the toxic chemical. There is ample evidence that PFAS polluters have been aware for decades of the dangers of PFAS, resulting in a number of plaintiffs filing suits seeking to hold these companies accountable for the harm caused by these chemicals. This includes, among others, individuals claiming personal injury, landowners claiming property damage, and water providers seeking to recover the expenses of removing these dangerous chemicals from public water supplies. Many of these water providers, who have played no role in producing the PFAS contaminating their water, believe that they should not face the burden of removing these contaminants from their water supply alone. Nor do they think such costs should be incurred by their ratepayers.
More from Michael DiGiannantonio: A Legal History of PFAS
So many lawsuits have been filed against PFAS manufacturers in recent years with respect to water contamination caused AFFF containing PFAS, such as those used previously to extinguish fires, that many of the cases have been transferred to a multidistrict litigation (MDL). MDLs are used to coordinate complex litigation filed in multiple federal district courts by similar parties. By consolidating the discovery and pretrial motions, both sides save time and money. The new MCLs are likely to give rise to more water providers joining the MDL that is being heard in the United States District Court for the District of South Carolina. The first trial, or “bellwether,” is scheduled to go to trial in June 2023. Bellwethers serve as test cases, helping the parties assess liability theories, defenses and damages. If these early cases yield favorable results for the plaintiffs, the larger pool of plaintiffs can often proceed forward more efficiently, and sometimes create a “domino effect” of settlements or court judgments.
Given the progress that has already been made, this MDL may provide water providers their best chance of recovering the costs of PFAS cleanup. There is still time to file a claim and join this MDL. It is a streamlined legal process and if water providers chose a law firm that works on contingency, fees are only paid if their case receives a successful outcome.
Protect Yourself Against Rising Treatment Costs, Tightening Regulations
While 3M recently announced that it will stop making PFAS by 2025, an indication that legal efforts to expose the harm of these chemicals has finally caught up to the company, many water providers still must contend with how to remedy contamination that has already occurred. As the demand for PFAS treatment technologies increases, costs for treatment products and services are also likely to rise. Even if a water provider does not exceed MCL limits today, that may change as these chemicals are still making their way through the environment.
“Water providers in states with no PFAS regulatory standards are likely to find PFAS, and even if they are below the MCL now, they are not necessarily in the clear as federal regulation can often trigger stronger regulation at the state level. Water providers need to consider the statute of limitations that varies from jurisdiction to jurisdiction, but generally begins once the discovery of the contaminants has been identified in the water supply or when the provider takes some action in response to the awareness of the contaminant. Claims brought after the statute of limitations has run out cannot be brought, no matter how valid—or valuable—they are. Therefore, there is no benefit to waiting,” says Sansone.
Water providers can file a claim to get ahead of the statute of limitations, even if they detect these chemicals below the MCL. This gives a time period of protection if things change and investment in new treatment facilities is required.
“We have never had a contaminant so dangerous and yet so widely used for such a long period of time – there is no comparison,” concluded Sansone. “Unfortunately, this is shaping up to be an expensive environmental disaster of historic proportion, both in terms of total cost of damages and number of people exposed to it. This truly is unprecedented, and it is going to take everyone’s participation, including the polluters, to right this wrong.”
Michael DiGiannantonio is an attorney at SL Environmental Law Group, focusing on protecting the public and environment from corporate polluters. DiGiannantonio is a former senior enforcement counsel and a former federal law clerk and professor of legal writing. He is admitted to practice law in Illinois and Michigan, and his application to become a member of the California Bar is currently pending.
