As EPA cracks down on ‘forever chemicals,’ cities worry about the price tag

As the Environmental Protection Agency prepares to regulate the rise of dangerous human-made chemicals in our drinking water, city and county water districts around the country are worried the effort could cost them billions of dollars.

The agency last year proposed classifying polyfluoroalkyl and perfluoroalkyl substances, or PFAS, as hazardous, and earlier this year it proposed setting a national standard on the amount that can be present in drinking water. But while local officials are generally supportive of these actions, they are concerned that an environmental law on the books could put them on the hook for billions more in cleanup costs. 

Unless Congress acts, companies that make the chemicals could use a highly technical federal law to sue local utilities and cities to force them to share the cost of removing PFAS from contaminated areas.

The amount the utilities might end up paying could be “astounding,” said Nathan Gardner-Andrews, chief advocacy officer for the National Association of Clean Water Agencies, which represents 350 public wastewater and stormwater agencies around the country.

Water districts are looking to Congress to change the laws to protect them from being liable. In interviews, the top Democrat and Republican on the Senate’s environment committee told Route Fifty that they are open to the idea.

Environmental groups, though, are opposed to making the change, arguing that taking away the fear of getting sued would lessen the incentive for utilities to spend the billions of dollars needed to keep PFAS out of water supplies.

These so-called forever chemicals are used in a wide variety of products like nonstick cookware, waterproof outdoor gear, makeup, food packaging, and stain-resistant clothing and carpets. The substances seep into soil and water via landfills, hazardous waste sites and even firefighting foam. Called forever chemicals because they break down so slowly, PFAS build up in humans and animals and have been linked to increased risk for some cancers, immune system deficiencies and decreased fertility.

So much of the chemicals have infiltrated U.S. water supplies, that according to a study earlier this month by the U.S. Geological Survey, at least 45% of the nation’s tap water has one or more types of PFAS in it.

Fears of being sued have been building among water districts around the country, including in Orange County, California, and Decatur, Alabama, since the EPA announced last September that it is considering classifying more kinds of PFAS as hazardous. These districts are concerned that such actions could lead to more EPA lawsuits against the manufacturers and, in turn, against them. The federal superfund law at issue casts a wide net on who would be liable for paying for the cleanup, including the water districts where the chemicals can end up.

The EPA has said that it does not intend to go after water districts as it tries to address the dangerous chemicals. But that is cold comfort to cities and utilities that argue that unless the law is changed companies could see legal action as a way to recoup costs. 

“Utilities that are otherwise fully compliant with state and federal water treatment and waste-handling laws could be held responsible for these costs,” said Jason Dadakis, executive director of Water Quality & Technical Resources with the Orange County Water District in California.

That’s not fair, says Gardner-Andrews of the water association, adding that manufacturers should shoulder the cost.

“Chemical companies that produced and profited from PFAS can use the law to come after publicly owned water utilities that are passive receivers of the chemicals,” he said. “Large corporations that were the original polluters of the chemicals [could] instead make the public pay.”

A draft of a bipartisan bill released in June by the Senate Environment and Public Works Committee did not include a provision shielding water districts from being held liable. A Republican spokesperson for the committee, though, said in an email to not make too much of that because the bill is still being worked on. When asked about the issue, both Democratic Sen.Tom Carper of Delaware, the committee’s chairman, and Sen. Shelley Moore Capito of West Virginia, the top Republican on the committee, said they were open to adding protection.

“We're mindful of the concerns from utilities for small communities and some other nonprofits," Carper, the former governor of Delaware, said. “Stay tuned.”

Capito went further, saying the committee has heard many comments from local water districts who are very concerned about not having any kind of legal shield. “So I believe that in order for us to have a successful product,” she said, “we have to put them” in the bill.

Environmental groups, for their part, believe the law is necessary to ensure water utilities get PFAS out of the drinking water supply. More important than arguing over who pays is to make sure all is done to stop the release of PFAS, said John Rumpler, clean water program director for Environment America.

“PFAS chemicals are a real threat to public health even at low levels,” he said. “Do they belong in drinking water, rivers, lakes and streams? The answer is ‘no.’”

Water districts already anticipate spending billions to remove PFAS from water. The EPA in March proposed requiring water districts to monitor for six kinds of forever chemicals in drinking water. If they are above a certain level, the utilities would be required to notify the public and reduce the level of contamination.

In a fact sheet, the association of clean water agencies and other groups, said the requirement would cost more than $3.5 billion annually to treat and dispose of the chemicals. That figure is well above EPA’s estimate that it would cost between $772 million to $1.2 billion.