Providing clean, safe water just keeps getting harder, especially with contaminants like per- and poly-fluoroalkyl substances (PFAS). Known as “forever chemicals,” these manmade compounds have been used in thousands of products and have made their way into source water across the U.S. through multiple paths. When ingested, they pose significant health risks, and policymakers are tasking public water systems to ensure the safety and sustainability of water resources.
At SL Environmental Law Group our mission is clear: ensure that the cost of treating water contaminated through others’ irresponsible actions is not borne by water systems and their customers. We have been solely focused on water contamination litigation since our inception in 2003, representing hundreds of water utilities, cities and state governments in lawsuits against the manufacturers whose products have contaminated their water supplies and wastewater systems.
Our PFAS litigation practice began more than seven years ago and eventually led to the Aqueous Film-Forming Foam multi-district litigation (MDL). This MDL consolidated hundreds of PFAS lawsuits, including claims by public water providers, wastewater operators, airports and many others seeking damages for PFAS contamination. In June 2023, DuPont and its affiliates proposed a settlement of more than $1.18 billion to U.S. public water providers, followed by 3M’s $12.5 billion settlement proposal. Both settlements are now final.
In April of this year, the U.S. Environmental Protection Agency (EPA) introduced the first-ever legally enforceable national drinking water standards for PFAS. Under the Safe Drinking Water Act, PFAS are now regulated in public water systems through National Primary Drinking Water Regulations (NPDWR) with maximum contaminant levels (MCLs) for five PFAS substances and PFAS mixtures. Public water systems have three years to initiate PFAS monitoring and must inform the public of detected levels. Within five years, systems must reduce PFAS that exceed MCLs—a mandate projected to cost billions of dollars.
In addition to federal regulation, several states are proposing and/or setting their own guidelines for PFAS in wastewater and biosolids
EPA also has classified PFOA and PFOS—two common PFAS compounds—as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, aka the “Superfund”). This move aims to bolster accountability for polluters releasing PFAS into the environment, but it also imposes hefty financial challenges on publicly owned treatment works (POTWs), exposing them to potential liability and clean-up costs for their wastewater discharge and biosolids.
In addition to federal regulation, several states are proactively proposing and/or setting their own guidelines for PFAS in wastewater and biosolids. In 2022, Maine passed a law prohibiting the land application of sludge from wastewater treatment plants. Proposed regulation in Maryland would require major industrial dischargers to test for and treat PFAS in wastewater before discharging to community WWTPs, and the state is also investigating PFAS concentrations in Class A and B biosolids and may follow Maine’s rules based on its findings. In New York, legislative efforts like the proposed PFAS Discharge Disclosure Act (S227B) aim to extend stringent PFAS monitoring requirements to wastewater. If passed, this law would be a national first, demanding comprehensive PFAS testing from a broad spectrum of discharge permit holders, including POTWs.
Unfortunately, federal and state funding – while substantial – will only cover part of the mitigation costs, and entities are turning to litigation as a crucial component of their cost recovery strategy. Many have enlisted SL Environmental for help.
The path forward is clear: Innovative funding solutions, including litigation as a strategic cost recovery option, can help POTWs navigate the complex regulatory PFAS landscape without imposing undue financial strain on ratepayers.