Utilities’ PFAS Cleanup Costs and Risks Exacerbated by New Rule

Water utilities and companies that have either of two PFAS chemicals the EPA has deemed hazardous Superfund substances face tremendous uncertainty about how they should manage those wastes, according to industry representatives and attorneys following the significant agency rule.

That uncertainty complicates waste management decisions, can increase costs, and increase liability risk, especially coming on top of the national PFAS drinking water limits the Environmental Protection Agency set on April 10, said Chris Moody, regulatory technical manager with the American Water Works Association, which represents drinking water utilities.

Yet the rule also helps communities, businesses, and property owners that are footing the bill to clean up the chemicals that others released into their water or land, said Jonathan Kalmuss-Katz, an attorney with Earthjustice, which litigates environmental issues on behalf of affected communities.

The EPA on Friday, for the first time, directly designated two chemicals—perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS)—as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or Superfund law.

That’s unusual because the hundreds of other chemicals designated as Superfund hazardous substances got listed after first being regulated under the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act (RCRA), or another environmental statute, said Reza Zarghamee, a partner with Pillsbury Winthrop Shaw Pittman LLP who specializes in allocating environmental liabilities from complex corporate and real estate transactions. Those rules often identified technologies companies could use to manage emissions, releases, and wastes, he said.

So, by the time CERCLA liability began to apply, businesses had some experience managing the previously regulated substances and wastes containing them, Zarghamee said.

‘Cloud of Uncertainty’

Directly designating PFOA and PFOS as hazardous, before those types of rules have been used, leaves water utilities with a “cloud of uncertainty as to whether our materials will be regulated as hazardous,” and how best to manage or destroy those wastes, Moody said.

PFOA and PFOS aren’t produced anymore in the US. But they’ve long been in imported products; they remain for decades or longer in the environment; and they continue to be released as products made with them or containing them as impurities are disposed of. Water utilities and landfills receive the two chemicals and other per- and polyfluoroalkyl substances (PFAS) from such releases.

To comply with state PFAS drinking water regulations and the EPA’s drinking water rule, water utilities will typically use certain technologies, such as filters with granular activated carbon (GAC) to remove the chemicals from the water, Moody said.

When the filters get full of the contaminants, they’re typically reactivated by a heat treatment that removes the chemicals from the filter so it can be reused.

Yet utilities that have removed PFAS even before the EPA’s drinking water or CERCLA rules came out have faced situations where the facility that formerly reactivated their filters won’t do so due to its liability concerns, he said. Treatment costs also have increased, he said.

Cost Recovery

An enforcement discretion policy the EPA also issued on Friday and settlements the agency can make with water utilities, airports, farms, landfills, and other sites that serve the public can protect them, Kalmuss-Katz said.

The EPA’s rule offers to help communities and landowners that have to pay to remediate PFOA and PFOS that’s been discharged onto their property or into their water by industrial polluters, he said.

“It’s far easier to recover response costs under CERCLA than under state common law,” such as the trespass and other litigation that’s been used until now, Kalmuss-Katz said. The rule “is an incredibly powerful tool to facilitate cost recovery.”

And it will help communities, PFAS-waste recipients, states, and other parties push for remediation to reduce contamination, he said.

Empowering Communities

“Communities harmed by legacy contaminated sites can—and should—push EPA and their state to investigate sites for cleanup, passing on those cleanup costs to the industrial polluter,” said Kelly Moser, a senior attorney and leader of the Southern Environmental Law Center’s Water Program, which works with affected people and neighborhoods.

Sandy Wynn-Stelt is a Belmont, Mich., resident who had thyroid cancer as a result, she says, of her community’s water and land being contaminated by PFAS wastes allegedly dumped by shoemaker Wolverine World Wide Inc.

“While the state and responsible party has stepped in at this time for us, we know that that can change at every state election,” she said. “In the past during Republican administrations, business was everything, which is how Flint and my situations were allowed to occur.”

Having a federal agency with the ability to oversee the contamination is vital, Wynn-Stelt said.

“This action is particularly important for low-income communities and communities of color who, as a consequence of historical environmental injustice, are more likely to live in communities near industrial sites or waste sites highly contaminated with PFOA and PFOS,” said Andrea Amico, co-founder of Testing for Pease, a community group that advocates for health protections for people affected by water contamination at the former Pease Air Force Base in Portsmouth, N.H.

“There is no price tag big enough to bring back all the lives cut short or traumatized by decades of PFAS exposures,” said Emily Donovan, co-founder of Clean Cape Fear, a Wilmington, N.C., community group created to fight contamination released in particular from a former E. I. du Pont de Nemours and Co. chemical manufacturing factory now owned by the Chemours Co.

But, “this is a step in the right direction,” she said. “Ultimately, we need PFAS regulated as a class and we will keep fighting until all PFAS are designated as hazardous substances.”