The cleanup market for PFAS chemicals will accelerate in every state, last for decades and cost tens of billions as the Biden administration moves to designate two major groups as hazardous enough for Superfund list status and to set drinking water contamination limits for up to 29 substances, say industry participants.
By the end of June, the US Environmental Protection Agency is set to deem PFOA and PFOS substances hazardous under the federal CERCLA, or Superfund, law. That action is under review by the White House as a proposed federal rule this year, set to become final in 2023, John Gardella, a partner at Boston law firm CMBG3, told ENR.
The designation would require facilities across the country to report on PFOA and PFOS releases and would allow EPA or other agencies to seek cleanup cost recovery or contributions. “This is going to happen,” he says. “EPA wants sites cleaned up and paid for up front.” He adds that the agency is likely to name two or three polluters per site.
Many owners are closely monitoring state and federal guidelines but are hesitant to proceed with expensive cleanup programs until final regulations are adopted.
“Many states and local agencies will likely adopt stricter standards, further increasing the market for PFAS remediation,” says Tamzen Macbeth, senior vice president and environmental remediation practice leader at engineer-CM firm CDM Smith. which has done extensive work in the sector. The designation also would likely lead to Superfund sites being reassessed for the chemicals, she says.
EPA also plans to release a proposed drinking water standard by the fall. But because its Unregulated Contaminant Monitoring Rule 5 issued last December requires sample collection for 29 PFAS chemicals between 2023 and 2025, it is likely the proposed rule will include more than PFOA and PFOS chemicals, says Alan LeBlanc, CDM Smith vice president and drinking water discipline leader.
Once EPA establishes a Maximum Contaminant Level for PFAS in drinking water, LeBlanc says he “anticipates a major increase” in related site engineering and construction work in the U.S, noting that many affected entities have already begun to address contaminants in water supplies. “Ultimately it will take decades to clean up PFAS in the U.S. environment,” he adds.
The Regulation Hurdles
Environmental groups want a drinking water standard of less than 1 part per trillion (ppt) for the total PFAS class, which contains more than 12,000 chemicals. “The agency simply cannot proceed by regulating them one-by-one. That will take millennia for them to regulate,” Erik Olson, Natural Resources Defense Council senior strategic director for health, told ENR.
The group has urged EPA to set drinking water standards for other PFAS chemicals, including GenX, PFBA, PFBS, PFHxS and PFNA. Limits for individual PFAS chemicals, for which EPA now has toxicity values, should be set at about 2 ppt to 4 ppt, he said.
When rules are final in late 2023, all states will also look for evidence of elevated PFAS levels, and identify entities to pay for remediation—whether or not the contamination was intentional, says Gardella.
But drinking water and wastewater utilities and municipal solid waste landfills say they want to protect users and taxpayers from cleanup costs and are seeking Congressional exemptions from liability under CERCLA.
It is unclear whether lawmakers have the authority to provide these, according to Gardella.
The PFAS Action Act of 2021 that passed the House but with no Senate action yet, requires EPA to set new PFAS standards under several federal laws. The bill failed to include a liability exemption amendment for water-wastewater utilities. It does have a narrow one for owners and operators of airports using Aqueous Film Forming Foam (AFFF), which contains PFAS, if they comply with safe handling rules, says an analysis by Farella Braun + Martel LLP.
Other legislation also proposes to ban AFFF manufacture, import and use in the US. The foam has been widely used by the US military for decades, with impacts to nearby groundwater and drinking water sources.
According to Bloomberg Law, the water authority near Dover Air Force Base in Delaware reported PFOS and PFOA levels in 2018 that were 2,245 times higher than EPA's health advisory level.
An Environmental Working Group analysis released last month of new DOD data notes the highest levels of PFOA, PFOS and other chemicals near 12 bases in Florida, Michigan, Pennsylvania and Washington state.
Last year, Congress provided more than $200 million for PFAS cleanup work at DOD sites and directed the department to provide a cleanup schedule by the end of October, the group says. DOD officials told Senate Appropriations Committee members last month the agency will soon switch to a more effective, PFAS-free foam.
Manufacturers facing lawsuits now, and in the future, are invoking status as federal government contractors as a defense strategy, Bloomberg Law says, but municipal utilities themselves now are ratcheting up pressure for relief from potential cost.
“We call on Congress to maintain CERCLA’s bedrock principle of polluter pays,” 10 national and regional water and wastewater agency associations said in a letter late last month to key Senate and House committees and ranking legislators, seeking immunity from CERCLA enforcement and liability.
With the chemicals ubiquitous in the environment, "water, wastewater, stormwater and water reuse systems passively receive PFAS from these sources," the groups said.
"The argument that an exemption may not be necessary for water systems because U.S. EPA would not seek to target local utilities as potentially responsible parties (PRPs) to bear liability is a false sense of protection," they added.
Municipal solid waste utilities have the same concern. “Landfills neither manufacture nor use PFAS,” the National Waste and Recycling Association said in its May 10 letter to the Senate Environment and Public Works Committee. Nationwide, PFAS removal from landfill leachate requires expensive advanced treatment that will cost “$996 million to $6.28 billion a year,” the group claimed.
Gardella said PFAS chemicals in construction materials could become a landfill contamination risk, particularly those purchased from foreign suppliers. He advises that firms also check past purchase orders to determine products that may have contained PFAS. “It’s time consuming and costly, but it will help companies identify where their liabilities lie,” Gardella said.
Environmental groups are opposed to exemptions. There now are numerous “hazardous substances” under Superfund that are regulated contaminants under the Safe Drinking Water Act, says NRDC’s Olson. “Water utilities are not exempt from Superfund and therefore must be careful in how they handle any hazardous substance-containing waste, so they don’t contaminate communities with these toxic chemicals,” he says.
For now, it appears EPA will target manufacturers and distributors, but those companies held responsible for Superfund cleanups also could file civil litigation against water and waste management companies, Gardella said.
Litigation Flurry Continues
On May 25, Massachusetts filed a federal district court lawsuit against 15 PFAS manufacturers—including 3M, DuPont, Chemours, the DuPont spinoff, and 10 other unidentified companies. The firms caused or contributed to PFAS contamination of the state’s “air, soil, sediment, biota, surface water, estuaries, submerged lands, wetlands, groundwater, drinking water and other natural resources,” said the state.
The complaint cited 126 contaminated drinking water systems in 86 communities with elevated levels of PFAS, including many that are “hundreds to thousands times higher” than the state’s maximum contaminant level of 20 ppt for six specific PFAS chemicals. The suit is one of a number by states seeking to recoup remediation costs, mostly in drinking water.
Attorney Gardella said that one past firm client, a small company he did not identify, was cited 15 years after an EPA-approved cleanup of a site with PFAS contamination after it was discovered that chemicals had migrated to drinking water.
Remediation companies also face risks. They develop the best cleanup plans for contaminated sites but now must look at the longer-term effects of contamination, says Gardella.
Macbeth says that In 2019, the Environmental Business Journal estimated that $160 billion would be spent to clean up PFAS in the U.S. “Undoubtably the projected costs have grown significantly in the last three years,” she notes.