On March 14, the Environmental Protection Agency (EPA) announced a new proposal for the regulation of six PFAS substances: PFOS, PFOA, PFNA, PFBS, PFHxS, and GenX. The proposed regulation would create national Maximum Contaminant Levels (MCLs) for these substances, requiring drinking water utilities across the country to respond if concentrations are found to be more than what the proposed MCLs allow, either by treating the contaminated sources or taking them out of service. The EPA expects to finalize the regulation by the end of 2023.
PFAS has become ubiquitous, as it has been used in a wide range of industries for water-resistant and stain-resistant products, and has been proven to cause adverse health effects in humans and animals. Given its widespread use, and the fact that it does not naturally break down within the environment, water systems that test for the contaminants tend to find them, as we’ve seen in states that already have PFAS MCLs like California, Massachusetts, and New York.
“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.”
The proposal would require that all water systems conduct initial monitoring at the entry point to the distribution system between 2023 and 2025. Based on their size and source, water systems must conduct initial monitoring either twice or quarterly within a 12-month period.
To reduce expenses, systems can utilize previously gathered monitoring data that was obtained through EPA Methods 533 or 537.1 during UCMR 5 or other suitable monitoring programs, which is common in most state and federal monitoring initiatives. Composite samples—when equal volumes of water from multiple entry points are combined and analyzed as a mixture—would not be permitted.
Water systems will also be required to notify the public of an MCL violation no later than 30 days after learning of the violation.
If this proposal is finalized, the EPA expects it will prevent thousands of deaths and serious illnesses caused by PFAS contamination. However, testing, handling, and disposing of PFAS can be complicated, costly, and requires specialized water contamination expertise.
One of the major concerns of this proposal is the burden it will impose upon water systems. If the contamination of a water system exceeds the MCL, the water system is responsible for installing treatment systems or switching to an alternative water supply. These options can cost water systems hundreds of millions of dollars, a financial burden that water systems might be forced to pass on to their rate payers.
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 in fact not played a role in producing the PFAS that is 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.
“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.”
So many lawsuits have been filed against PFAS manufacturers in recent years, particularly with respect to water contamination from the use of 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 begin 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. It is a streamlined legal process and if water providers chose a law firm that works on a contingency basis, fees are only paid if their case receives a successful outcome. Water providers can file a claim 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.
There is still time to file a claim and join the PFAS MDL. To understand your options and whether retaining a firm like SL makes sense for your water system, schedule a free consultation with one of our team members.