Navigating The PFAS Crisis: Insights From An Environmental Legal Expert

By Christian Bonawandt

In the wake of the U.S. EPA finalizing new maximum contaminant levels (MCLs) and a Hazard Index for several types of per- and polyfluoroalkyl substances (PFAS), utilities are grappling with how to comply with these stringent regulations and manage the potentially immense costs. Thankfully, environmental law firms have stepped up, filing substantial lawsuits against PFAS manufacturers 3M and DuPont, as well as other liable parties, in order to shift some of the financial burden to those responsible for the contamination.

Speaking on Water Online: In the Flow, Ken Sansone, Senior Partner at SL Environmental Law Group, shared some insights on how water utilities can navigate this legal and financial quagmire. He also provided a behind-the-scenes look into the ongoing litigation against PFAS manufacturers and the potential relief available to affected communities.

Taking On The Titans

PFAS contamination has affected water systems throughout the country. Most have been traced back to manufacturers like 3M and DuPont who allegedly developed and pushed for the use of PFAS products despite knowing the risks. “Rather than suing local businesses or other agencies that may have used or released these chemicals as part of their operations, typically not having any idea of the potential environmental risks, [we looked] at the remote manufacturers of these products who did know the risks and in most cases were the ones who profited the most handsomely from that,” Sansone explained.

In 2023, multi-district litigation against both firms ended in major settlements totaling billions of dollars. The settlements aim to compensate public water systems for the costs associated with treating PFAS-contaminated water sources. The 3M settlement, valued at up to $12.5 billion, is one of the largest environmental settlements in history, while the DuPont settlement is around $1.185 billion.

For utilities looking to benefit from these settlements, Sansone insisted the criteria for eligibility are straightforward. “A water system is eligible to receive payment even if its concentrations of PFOA or PFOS are below 4 ppt,” he said. While the concentration of PFAS in a water supply impacts the payout amount, all systems with PFAS contamination, regardless of concentration, can receive restitution.

According to Sansone, the settlement process has been divided into two phases. Phase one is designated for utilities that detected PFAS in their systems before June 2023. Approximately 6,000 water systems fall into this category. Unfortunately, the deadline for claims under phase one ended July 2024. However, phase two is more open-ended and is intended to accommodate any water systems that have yet to conduct meaningful PFAS testing, as required under EPA’s UCMR5 compliance.

The Legal Battles Continue

While the settlements with 3M and DuPont represent significant victories, the legal battle is far from over. Sansone emphasized that other PFAS manufacturers, particularly those involved in the production of firefighting foam, are still being sued. Tyco, a major manufacturer of firefighting foam, recently reached a settlement.

Sansone urged utilities to preserve their rights against these other manufacturers. “In addition to making sure that you get your claims filed under [the 3M and DuPont] settlements, another piece of advice that I've been giving water systems I talked to who are dealing with PFAS is you do want to make sure that you are suing these other manufacturers,” he advised.

Financing Strategies

While the settlements provide much-needed financial relief, Sansone noted that they are unlikely to cover 100% of the costs of installing and running PFAS solutions. These systems — often using granular activated carbon (GAC) or anion exchange technologies — are costly, and the ongoing maintenance expenses can add up over time.

“Virtually all of my clients have been satisfied with what they're getting,” he said. “But I do want to recognize, as somebody who tries to help shift these costs away from the taxpayers, that ultimately, taxpayers and rate payers are going to get stuck with some of them,” he said.

Nevertheless, Sansone advised utilities to continue pursuing traditional financing avenues, such as grants and loans, to ensure they remain compliant with EPA regulations. He described PFAS litigation as “another form of financing,” one that shouldn’t replace other funding mechanisms but instead complement them.

The Road Ahead

The PFAS crisis has no quick fix, but the existing settlements and those lawsuits still being litigated offer a glimmer of hope for affected communities. As Sansone and his team continue to fight on behalf of water utilities across the country, it is clear that the battle is far from over. The problem, he noted, “is enormous,” and new costs are inevitable, as rules regarding the disposal and transport of PFAS-laden filter media continue to be finalized.  

For utilities dealing with PFAS contamination, the message is clear: act quickly, seek legal advice, and pursue every available avenue to offset the staggering costs of cleanup.