PFAS Water Regs' Compliance Costs May Spark Litigation

March 21, 2023

By Ian W. Sloss and Paul A. Slager

On March 14, in an important and much-anticipated public health initiative, the U.S. Environmental Protection Agency for the first time proposed federal standards that would protect people and communities from per- and polyfluoroalkyl substances in drinking water.

The EPA estimates that, when fully implemented, these standards will prevent thousands of deaths and tens of thousands of illnesses attributed to PFAS chemicals.

PFAS, found in everything from waterproof clothing to toilet paper, are known as "forever chemicals" because they seep into soil and water and persist in the environment and the human body indefinitely. They have been linked to cancer and other health effects.

Importantly, these chemicals are entirely synthetic, created and disseminated by human beings, and otherwise would not exist in nature. Of course, this means that people are responsible for the introduction of these chemicals to public and private drinking water supplies.

The sources of PFAS in the environment are myriad. They include manufacturing facilities that produced products that contained the chemicals, which include firefighting foams, nonstick coatings and stain-resistant materials.

Places with a prevalence of former industrial sites, such as those throughout the Northeast, may find that high levels of PFAS in their drinking water. These chemicals can enter the environment through wastewater discharge, air emissions or improper disposal, and eventually make their way into public water supplies.

While these newly proposed standards would for the first time provide federal protection to people whose drinking water is contaminated by industrial waste, much of the cost of ensuring that water complies with the new standards will fall on local municipalities who supply drinking water to the public — effectively the same people the standards seek to protect.

To comply with the new federal standards, municipalities would have to monitor public water supplies for the chemicals and notify the public of contamination levels. If levels exceed the proposed standards, they will have to reduce contamination through costly remediation and follow-up testing.

This result is likely to make drinking water much safer, but will also spawn a significant rise in environmental litigation, as the suppliers of public water seek to shift the cost of compliance onto the companies that manufactured the chemicals and distributed them into the environment.

Potential PFAS Contamination Sources

• Firefighting Foams

Aqueous film-forming foams have been widely used by the military, airports and fire departments due to their effectiveness in extinguishing petroleum-based fires. These foams have historically contained PFAS, which can contaminate groundwater and surface water near sites where the foam has been used or stored.

Efforts to phase out the use of PFAS in firefighting foams only began in earnest in the late 2000s, making it likely that many fire departments have used foams with PFAS within the past 20 years.

• Landfills and Waste Disposal Sites

Landfills and waste disposal sites that accept PFAS-containing products or waste have been shown to be sources of contamination. Chemicals have been shown to leach from these sites and contaminate nearby groundwater or surface water, which may then enter the water supply.

• Wastewater Treatment Plants

Wastewater treatment plants that receive and treat industrial or municipal wastewater containing PFAS can inadvertently release these chemicals back into the environment through treated effluent or residual biosolids.

Treated wastewater discharged into rivers and lakes can contaminate drinking water sources downstream, while biosolids applied to agricultural land as fertilizer can lead to PFAS leaching into groundwater.

• Biosolids and Agricultural Runoff

PFAS-contaminated biosolids applied to agricultural land can contribute to the contamination of nearby water sources through runoff and infiltration. Crops grown on PFAS-contaminated soil can also take up these chemicals, potentially introducing PFAS into the food chain.

The High Cost of Compliance

All of these common sources of PFAS threaten the quality of municipal water supplies. Given the many potential sources of PFAS, hundreds of towns and municipalities are likely to face higher costs as they take steps to ensure compliance with the new standards.

Such steps will include not just increased monitoring and testing of water supplies, but also implementation of effective treatment technologies to help reduce PFAS levels in drinking water. This will require detailed action plans, investments in new monitoring systems and treatment facilities, and potentially even replacing infrastructure if contamination is found.

Moreover, ongoing operational expenses related to the monitoring, reporting and maintenance of water systems in compliance with these new standards will further strain municipal budgets. These measures, while critical to public health, will be expensive, raising the important question of who will pay the costs.

To recover these costs from those who created the hazard rather than the taxpaying public, some municipalities are likely to pursue litigation against the manufacturers and distributors of PFAS chemicals.

Manufacturers could be held responsible for the costs associated with treating and removing PFAS from the affected water supplies, as well as for the public health and environmental impacts caused by their products.

Once federal standards for PFAS chemicals are adopted, there will be little question about the need for remediation and the level of PFAS contamination that poses a threat to public health. The question that will remain unanswered for the moment, however, is who should pay the bill.

This article was published by Law360 on March 21, 2023, under the headline PFAS Water Regs' Compliance Costs May Spark Litigation.