EPA PFAS Management Plan Falls Short – States and Private Litigants Move Ahead

Per- and polyfluoroalkyl substances, also known as PFAS, are emerging as one of the nation’s most significant environmental problems. The PFAS group of chemicals, which are highly mobile, persistent, and potentially toxic, are ubiquitous in the environment. They are estimated to be present in more than half of the drinking water in the United States and in hundreds of products, from clothing to food packaging to building materials. While limiting exposure to PFAS has become a priority for policy makers at both the federal and state levels, states are the most aggressive actors. At least 16 states have enacted or proposed legislation to address PFAS contamination and a similar number have promulgated or proposed rules to regulate PFAS. Private litigants are active, especially the private well owners and public water supply systems who face mounting costs to treat PFAS or find new supplies of clean drinking water. This activity occurs against a backdrop of scientific uncertainty. Scientists continue to study how PFAS chemicals behave and how they impact human health and the environment, and these important studies will inform future regulation and litigation.

EPA first issued non-binding Drinking Water Health Advisories for PFAS in 2016. [1] The U.S. Environmental Protection Agency (EPA) advised that PFAS levels above 70 part per trillion creates a risk of birth defects and possibly cancer. Since issuing the health advisories, EPA has generally remained silent about what to do about PFAS, leaving water providers with the responsibility (but not the funding) to determine if they are present in their drinking water supplies.

In addition to drinking water, there are concerns about consumer products tainted with PFAS.[2] Many common household products contain PFAS, including cookware, carpets, food packaging, clothing, and cosmetics. Washington became the first state in the country to pass legislation banning PFAS tainted food packaging products.[3] Several other states including New York,[4] Rhode Island,[5] Massachusetts,[6] and Maine[7] have introduced bills to do the same, while states such as California have proposed legislation to require disclosure and reporting requirements for products that may contain the chemicals.[8] Companies have begun voluntarily eliminating PFAS from product lines, a trend that will likely intensify, as occurred with BPA in water bottles.
 

Continue the Conversation

Readers following PFAS developments may wish to attend one of these upcoming seminars:

• A panel chaired by Marten Law’s Jeff Kray entitled “PFAS: Impacting Site Remediation and Litigation for Years to Come?” at the 48th Annual Spring Conference of the ABA Section of Environment, Energy, and Natural Resources in Denver, on March 28 , 2019. For more information and registration, see: https://www.americanbar.org/events-cle/mtg/inperson/343159962/.
• A panel Jessica Ferrell is speaking on entitled “Environmental Class Actions: Emerging Persistent Contaminants” at Law Seminars International’s 15th annual conference on Litigating Class Actions in Seattle on May 10, 2019. For more information and registration, see: https://www.lawseminars.com/seminars/2019/19CLASSWA.php.

The Federal Response

A. EPA’s PFAS Management Plan

EPA’s long awaited PFAS Management Plan (Plan) was released on February 14, 2019, amid great anticipation among a broad range of stakeholders. Although the Plan was welcomed by some as a helpful step forward,[9] critics argue that EPA is just kicking the can down the road on taking real actions to address the problems PFAS use has created.[10]

The Plan provides some answers to two yet-unanswered questions: whether EPA would set enforceable drinking water standards known as Maximum Contaminant Levels (MCLs) for two PFAS, PFOA and PFOS, and whether the Agency would list them as hazardous substances under the Comprehensive Environmental Response Compensation Liability Act, (CERCLA). The answer for both appears to be “maybe, sometime in the future.”

1. Safe Drinking Water Act (SDWA)

The process of setting a drinking water MCL for specific chemical pollutants under the SDWA is a rigorous, multiple step process that takes years to complete. This process involves determining whether the substance may have an adverse effect on human health; is known to occur, or there is a substantial likelihood that it will occur in public water systems with a frequency and at levels of public health concern; and, in the judgment of the EPA administrator, regulation presents a meaningful opportunity for health risk reductions for people served by public water systems.[11]

The Obama Administration initiated the process of assessing the first two parts of the determination process. In late 2016, EPA listed PFOA and PFOS under its 4th Contaminant Candidate List (CCL),[12] which is a list of contaminants that are currently not subject to regulation but are known or anticipated to pose risks for drinking water. Inclusion on the CCL does not mean that any particular contaminant will necessarily be regulated in the future. EPA’s 3rd Unregulated Contaminants Monitoring Rule (UCMR) promulgated in 2012, listed PFOA and PFOS among a list of 30 contaminants required to be monitored by public water systems.[13] The data provided by UCMR is intended to be nationally representative and is one of the primary sources of occurrence information used to evaluate the prevalence of contaminants for the MCL regulatory determination process. Through the 3rd UMCR process, EPA sampled 5,000 public water systems representing about 80% of the population served by public water systems. However, there are more than 160,000 public water systems in the U.S., most of them managed by small municipalities. It isn’t clear that the UMCR sample is truly representative of PFAS prevalence in U.S. public drinking water systems.

If EPA determines that the SDWA criteria have been met, it must then initiate the formal rulemaking process to establish the appropriate level. The notice and comment rulemaking process typically takes at least 18 months to complete. In addition, the SDWA stipulates that primary drinking water standards such as MCLs are to become effective 3 years after they are promulgated to allow water systems to adjust to the new requirements.[14]The lengthy process to establish an enforceable cleanup standard has prompted increased Congressional attention, as described in more detail below.

2. CERCLA

The second major regulatory development that stakeholders were anticipating in the Plan was the listing of PFOA and PFAS as “hazardous substances” under CERCLA. Doing so would establish a federally enforceable right to recover cleanup costs from responsible parties and establish cleanup levels, giving parties certainty in the quality of the cleanup. In the Plan EPA indicates that it has “initiated the regulatory development process … using available statutory mechanisms.” While it is significant that EPA has initiated these regulatory processes, it will inevitably fall to a subsequent Administration to pick up where the current Administration left off.

3. Monitoring and Technical Assistance

The Plan also outlines a series of short and long-term actions to better understand and address PFAS contamination. In the short-term, EPA plans to provide technical assistance and resources to improve PFAS testing and monitoring methods and to enhance treatment and remediation technologies. The agency also plans to employ an enforcement strategy to support state and local authorities in addressing ongoing PFAS releases. In the longer term, EPA also plans to conduct toxicity assessments for 5 additional PFAS by 2020 and consider adding PFAS to the Toxic Release Inventory program to improve the tracking and monitoring of PFAS releases.

B. Congressional Action

Both the previous and current Congress have shown bipartisan willingness to advance legislation to fill policy gaps left by the Executive Branch. The 115th Congress passed Defense Appropriations Bills for fiscal years 2018[15] and 2019[16] that authorized funding for comprehensive surveys and analyses of PFAS contamination near military installations, one of the most pervasive sources of contamination. Additional bills were introduced by Members from states acutely affected by PFAS including proposals to list the chemicals as hazardous substances under CERCLA,[17] directing EPA to set MCLs,[18] and establishing performance standards for aqueous firefighting foam,[19] a prodigious PFAS source. Democratic Senators of the 115th Congress also attempted to extract policy concessions from EPA through its advice and consent role during confirmation processes for EPA policy officials, seeking assurances that the Agency would set enforceable standards for PFOA and PFOS in exchange for votes of approval.[20] The officials have since advanced out of the Senate Environment and Public Works (EPW) Committee, and given the substance of EPA’s PFAS Management Plan, the Agency is also attempting to make good on its promises.

The 116th Congress has amplified the PFAS legislative agenda with the introduction of additional PFAS specific legislative proposals and through its Executive Branch oversight role. In addition, House Representatives Dan Kildee (D-Mich.) and Brian Fitzpatrick (R-Pa.) have established a bipartisan task force to address PFAS management concerns. The task force will work to bring PFAS cleanup to the forefront of the House agenda by holding informational events to educate other members of Congress and their staff(s), crafting legislation, meeting with committees and congressional leadership, and advocating for more robust funding through federal appropriations.[21]The 116th Congress has clearly emphasized PFAS within its nascent legislative agenda. Although it is unclear whether any of the stand-alone PFAS bills will ever become law, the policy proposals within them will continue to put pressure on EPA.

The State Response

In the absence of a binding, enforceable Federal policy, several states have filled the vacuum with their own regulation and legislation. As of this writing, 16 states have finalized 27 regulations with 7 additional proposed rules forthcoming. These regulations address PFAS management issues ranging from exposure limits for drinking water, groundwater cleanup standards, hazardous waste disposal, and children’s products liability. Even more states have issued their own non-binding drinking water health advisories and policy guidance addressing issues such as consumption of fish and game in areas of high PFAS exposure, screening criteria for utilization of dredged material and storage, and disposal of aqueous firefighting foam. State legislation addressing a similarly wide range of PFAS management issues has also increased dramatically, particularly in New England and the Upper Midwest where PFAS contamination is acute and widespread. States have tailored their regulations, legislation, and policy guidance to address priority PFAS management challenges unique to them, highlighting both the breadth and localized nature of these challenges. At the same time, varying degrees of stringency among state drinking water standards highlights differing risk tolerances in the face of scientific uncertainty. For example, New Hampshire recently proposed setting a drinking water MCL of 70 PPT for PFOA and PFOS combined,[22] while New York has proposed an MCL of 10 PPT.[23] To further highlight the diversity of thinking about margin of safety, Health Canada has recently released technical documents supporting drinking water standards at significantly higher levels -- 200 ppt for PFOA and 600 ppt for PFOS.[24]

PFAS Actions in the Courts

EPA’s announcement does not modify the current legal landscape surrounding PFAS. Without an MCL or CERCLA cleanup level, there is not an enforceable federal standard, and enforcement remains at the state level for now. There are, however, still options for individuals and entities, including municipalities and public utility systems, if PFAS contamination is found.

A. Common Law Tort and Nuisance Claims

In the absence of a comprehensive regulatory regime, the most common forms of litigation have been personal injury claims, class actions, and actions claiming private or public nuisances and trespass from contamination. These cases rely on basic common law tort principles. For example, a personal injury plaintiff may need to demonstrate that a defendant has a duty of care to manufacture products that do not carry an unreasonable and foreseeable risk of harm to individuals or their property; that such a duty was breached; and that, as a direct or proximate result of such a breach, the plaintiff was harmed.[25]

One of the first of these cases was a 2001 action brought by dairy farmers in West Virginia related to PFOA. That case, brought against the chemical manufacturer DuPont, was settled for $671 million and addressed 3,550 personal injury claims arising from a leak from its plant in Parkersburg, West Virginia.[26] But tort claims are not solely brought by harmed individuals; state and local governments affected by PFAS contamination may also bring claims. Once recent and prominent example is the suit filed by the State of New York in state court in Albany against six manufacturers of PFAS-containing firefighting foams.[27] The suit rests on state law tort theories of nuisance, strict products liability, and failure to warn, with the State of New York standing in for its citizens to seek a minimum of $38 million in compensation and restitution.[28] Additional claims in state courts by local water systems, municipalities, and other government entities are likely in the next few years as more contamination is found.

1. Sovereign Immunity and the FTCA

The U.S. Air Force is one of many contributors to PFAS contamination. PFAS-containing chemicals are used in training and fighting fires at military bases around the world, and as such, the U.S. Air Force (or other military branch) is an appropriate defendant in cases where contamination is due to military activity.[29] The United States can only be sued in tort under the Federal Torts Claims Act (FTCA)[30] which authorizes suits against the United States for money damages due to property damage caused by government employees acting in the scope of their employment.[31] To bring a tort claim under the FTCA, the plaintiff must first file an administrative claim with the federal agency alleged to have committed the harm, providing sufficient notice to allow the agency to investigate the claim.[32] Only after that administrative claim is denied can plaintiffs take their claims to a U.S. District Court. In an FTCA action, the substantive tort law of the state where the tort occurred will then apply.

Plaintiffs may also sue the United States under the Fifth Amendment (so-called “takings” claims) for loss of use and value of contaminated property. In order to bring a successful takings claim, a claimant must demonstrate that a property interest has been affected, and that government action resulted in the government “taking” that property without just compensation.[33] However, at least one similar claim related to the United States’ use of trichloroethylene (TCE) at a military base was rejected due to failure to demonstrate that contamination is a direct and probable result of military activity; to the extent that the case turns on questions of foreseeability, it may more appropriate for a tort suit.[34]

2. Multi-District Litigation

The increase in testing for PFAS resulted in an explosion of suits across the country, with more likely to come. One of the main ways that a defendant can regain control over an expanding liability landscape is by consolidating multiple cases into a Multi-District Litigation, or MDL.[35] While arguably the consolidation only consolidates the pre-trial proceedings (the cases are remanded to the original court for trial), the practical effect of an MDL is to narrow the scope of discovery and provide a single consolidated venue to evaluate and (often) settle all current and future claims, such as in the asbestos products liability litigation and mega-settlement.[36]

As more and more tort cases are brought against manufacturers nationwide, they are ripe for MDL treatment. In December 2018, the Judicial Panel on Multi-District Litigation, at the request of defendants Tyco Fire Products, Chemguard, 3M, and others, consolidated 75 personal injury cases pending in courts across the country into a single MDL, In re: Aqueous Film-Forming Foams Products Liability.[37] This MDL includes all cases in which plaintiffs allege harm from groundwater contamination due to the manufacture and use of PFOA or PFAS- containing firefighting foams. This MDL is therefore likely to sweep in other emerging claims against manufacturers of firefighting foams as additional contamination is found, such as class action torts and products liability claims.

B. Statutory Claims

Tort claims are only one path in litigation. Statutory claims are another. These are less likely to be consolidated into an MDL because they arise under distinct and separate state statutes, each with their own different wording, scope and intent. Statutory claims involving PFAS are likely to proliferate in both state and federal courts. This is especially so if PFAS are designated as hazardous substances under state cleanup laws or the federal Superfund statute(s). One of the EPA’s proposed actions that could, once enacted, result in an explosion of statutory claims is the listing of at least two PFAS, PFOS and PFOA, as “hazardous substances” under Section 102 the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund.[38]

At least one PFAS-contaminated site is already been added to the National Priorities List (NPL), the trigger for cleanup activities under the Superfund. The Saint-Gobain Performance Plastics Site in Hoosick Falls, New York, was added in July 2017 due to contamination with both PFOA, which was not a listed “hazardous substance” at the time, and trichloroethylene (TCE), which was and is a listed substance.[39] Listing PFOA and PFOS as hazardous would provide a basis for listing PFAS-contaminated sites on the NPL even without other co-contaminants, and may therefore provide for “removal” actions (under Section 107) or claims for “contribution” for remediation to go forward; however, without a national Maximum Contaminant Limit (MCL) in place it will be difficult to determine the scope of any cleanup.

Lastly, an area in which there may be additional litigation is in efforts by states to regulate federal facilities. For example, the state of Minnesota filed suit in 2010 against another manufacturer, 3M Company, for contamination of water supplies with per- and polyfluorinated chemicals under the Minnesota state Superfund law and the Minnesota Water Quality Act. That suit was settled in 2018 for $850 million, mostly in the form of a fund to invest in drinking water and natural resource projects.[40] Settlement numbers like these bring attention, and additional claims are likely under state statutes in the absence of federal regulation.

An interesting recent development in the State of New Mexico may provide additional insight into the viability of state regulation in the absence of federal rules. New Mexico has been seeking to force the U.S. Air Force to address PFAS contamination at military bases in that state. The United States, potentially as a test case to limit state regulation, is fighting back. On January 17, 2019, the U.S. DOJ filed a complaint on behalf of the Air Force seeking to invalidate a permit that the State of New Mexico issued to Cannon Air Force base under the New Mexico Hazardous Waste Act.[41] The Air Force claims that, by including perfluorinated compounds, PFOS, and PFOA in the definition of “hazardous waste” subject to corrective action in the Air Force Base’s permit, the State of New Mexico acted outside the scope of its authority under the federal Resource Conservation and Recovery Act (RCRA). The complaint also states that enforcement of the permit conditions relating to PFAS is barred by sovereign immunity (because these compounds are not listed and thus outside of the scope of the federal statutory waiver).[42]

By seeking a declaratory judgment in advance of any enforcement action on the permit, the United States made its first official action in the courts to cut back on state enforcement of PFAS limits (at least as applied to federal entities). This injunctive suit has not, however, discouraged the state’s enforcement efforts; on February 6, 2019, the New Mexico Environment Department issued a Notice of Violation to Holloman Air Force Base for groundwater contamination with PFOA and PFOS, in violation of state water quality standards.[43]

Conclusion

At the end of the day, the EPA’s long-awaited PFAS announcement turns out to be little more than a “promise to plan” to take action. As the PFAS problem continues to garner national headlines and gain traction in Congress, state legislatures, and courtrooms, more changes will come.

For additional information, please contact Mr. Frey at nfrey@martenlaw.com.

*Nathan Frey is a Policy Advisor with Marten Law in Seattle, WA; Nathan is the owner and principal of Regulatory Strategies and Solutions Group (RSS), a regulatory policy and advocacy consultancy that advises clients on regulatory risk management strategies. Prior to forming RSS in 2015, Nathan served for over 8 years in the White House Office of Information and Regulatory Affairs, where he oversaw the regulatory policies of EPA. 

The authors wish to thank Sarah Wightman, Jessica Ferrell, Jeff Kray and Brad Marten for reviewing this article and providing additional material.

Marten Law is pursuing claims on behalf of several water districts whose drinking water supplies have been impacted by PFAS releases at military installations and fire training facilities.