Wastewater Treatment Plants Sue PFAS Manufacturers

As the PFAS regulatory world evolves, those who generate or dispose of these toxic compounds watch on, eager to know what will be expected of them. Though lately some of them—especially some wastewater plant operators—are no longer just waiting, fearful of legal consequences if they do.

They have seen state regulations targeting drinking water, and most recently the U.S. Environmental Protection Agency’s (EPA) adoption of national drinking water standards with aggressive concentration limits— 4 parts per trillion for PFOA and PFOS.

Now more than drinking water is in the limelight, including wastewater. EPA recently set federal discharge permit limits for some PFAS compounds and now faces pressure to outlaw PFAS in biosolids and sludge used as fertilizer. Currently, the agency allows land application, but some states are coming down on this practice.

Ken Sansone, senior partner at SL Environmental Law Group, expects to see claims brought against providers of these sludge-based fertilizers. In many cases, those providers are the wastewater treatment facilities.

“We have not seen these plants on the receiving end of such lawsuits yet, but I think the risk is there. The greatest risk is created by EPA’s designation of PFOA and PFOS as hazardous materials,” he says.

This designation means that under The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), any party who generates, handles, or disposes of PFAS-laden materials can be held accountable for cleaning up impacted sites.

EPA indicates it does not plan to go after wastewater treatment operators or other “passive” receivers. But this sector stands at attention since the policy position could shift, especially as the agency’s administrators change.

Parties may be liable even if they were unaware of these chemicals’ impact on human health or the environment—dangers that first came to the public light in the last several years as major PFAS manufacturers, namely 3M and Dupont, faced lawsuits.

Meanwhile, the new federal hazardous material law is retroactive, meaning how operators have handled these persistent contaminants over decades could potentially impact their costs to deal with them into the future.  In essence, what they once sold as a land application could become a huge financial liability, possibly to clean it up, but at the least to ship it to hazardous materials landfills.

What else worries people like Sansone and the operators they represent is that under CERCLA private citizens could sue those who generate or dispose of PFAS-contaminated waste.

At the state level, Maine has banned land application of biosolids, and Michigan has proposed a ban. And about six states require testing of biosolids or wastewater for PFAS— policies that are often a preface to regulatory action, depending on findings.

Some wastewater plant operators in the few states with mandates have brought lawsuits against manufacturers of PFAS and products containing it. They argue they did not cause the problem and should not bear the cleanup costs.

While they could potentially be liable for the PFAS in waste they generate, there is also legislation holding manufacturers responsible when their product causes injury to persons or property.

SL Environmental Law, who represents about a dozen wastewater facility operators impacted by PFAS and is in discussion with dozens more, is already filing lawsuits, Sansone says.

Suing manufacturers ahead of regulations makes sense in his view. The strategy played out well on the drinking water side, he says. 3M recently entered into a $12B settlement, and Dupont entered into a $1.2B settlement.

“We started filing drinking water PFAS cases in 2018, before there were standards. We and our clients knew then that there would be regulations at some point, and they could incur costs, so they were trying to get ahead of the game,” Sansone says.

“That worked well because as we were working on those lawsuits the regulations were developing, and you kind of had two trains meeting at the same station – the litigation train and the regulatory train.”

Settlement distributions were determined by a score assigned to each impacted drinking water source, based on PFOS and PFOA concentrations and the size of the contaminated source.

Another provision written into the settlement operates as a multiplier of that score for systems that filed suit before the agreements were announced.  The idea was to generously compensate those who put pressure on 3M and Dupont that ultimately resulted in monies even for impacted parties that did not file.

“So, the multiplier [rewards] those who took the risk of filing a lawsuit —for putting themselves out there early rather than wait for others to file— and say, we have PFAS in our drinking water,” Sansone says. 

Congress is considering legislation to exempt wastewater treatment and drinking water plant operators who generate PFAS media from liability under CERCLA. Though the policy has not yet moved forward.

With Maine’s ban on land application of biosolids, it finds itself in the midst of a crisis, especially as the only state-owned landfill nears capacity. Dealing with that crisis is proving expensive. 

Many Maine utilities’ biosolids disposal costs more than doubled practically overnight with the passage of the ban, according to Philip Tucker, superintendent, York Sewer District.

The PFAS dilemma has forced utilities to raise rates to offset high biosolids disposal costs while searching for new technologies to destroy these forever chemicals.

York Sewer District is one of the first operators of its kind in Maine to file a lawsuit.

“We wanted to protect our users and ratepayers by filing this lawsuit, because we understand that there could be substantial future costs of environmental clean-up.  The manufacturers and distributors of these chemicals should be paying these astronomical clean-up costs,” Tucker says.

As utilities in other states await more direction, Sansone has this advice for them:

“As part of their diligence they should be thinking about how potential regulations could impact their costs and ways they will try to mitigate those costs’ impacts. They should be considering litigation against responsible manufacturers as part of that strategy.  I think we can look at what happened on the drinking water side as a model.”