States Eclipse Feds in Cleaning Up ‘Forever Chemicals’ in Soil

By Tripp Baltz | Bloomberg Law | November 10, 2021

Read the full article from Tripp Baltz (Bloomberg Law)

“States are moving to set cleanup targets for so-called ‘forever chemicals’ in soil—guidelines that attorneys say could create the potential for state and federal conflict over standards as the Biden administration advances its own plan to combat PFAS pollution.

Pennsylvania, Massachusetts, and Maine recently have established standards for per- and polyfluoroalkyl substances, or PFAS, in soil, and California and Washington are exploring them. They reflect the reality that PFAS seeping into the ground can migrate into groundwater.

So far, no state has established an enforceable liability standard for PFAS in soil, at least not explicitly. But that could be coming as the U.S. Environmental Protection Agency moves forward with the roadmap for addressing the chemicals that the White House announced in mid-October, attorneys said.

The roadmap includes a commitment to hold polluters responsible and includes a reference to PFAS contamination in soil, said Allyson Cunningham, partner at Lathrop GPM LLP’s environmental and tort practice group in Kansas City.

‘So while states continue to develop their own varying thresholds and guidelines for cleanup, it is almost certain that federal regulations are looming, and potential liability is on the horizon,’ she said.

Soil standards for PFAS, similar to those for drinking water, are designed to protect the public from the family of toxic substances. PFAS chemicals have an ability to build up in organisms and move up the food chain, and their persistence in the environment has led them to be dubbed ‘forever chemicals.’

Waiting for Feds

For now, Maine is ‘pretty far ahead of the federal government,’ said Patrick MacRoy, deputy director of the environmental group Defend Our Health in Portland, Maine.

A dairy in Arundel, Maine, in 2016 discovered extremely high levels of PFAS in milk, water and soils. It drew national attention because the contamination was linked to treated sludge or paper mill waste that had been legally applied to fields as a fertilizer.

Although it’s conceivable an attorney could sue a company if a PFAS in soil standard were exceeded and someone got sick, that hasn’t typically happened if levels are set only in states, said John Gardella, a shareholder at CMBG3 Law in Boston whose practice focuses on environmental litigation and compliance.

‘Plaintiffs’ attorneys typically wait for federal agencies to weigh in on toxicity of chemicals before filing lawsuits for personal injury,’ he said.

This was the case with glyphosate litigation, he said. Despite the EPA and European Union finding no link between that chemical and toxicity to humans, when the World Health Organization issued a statement finding a probable link, Roundup weed killer lawsuits ‘boomed overnight,’ he said.

Still, he said, personal injury litigation is most likely to occur with PFAS drinking water standards that are on the horizon from the federal government.

The American Chemistry Council, the largest group representing chemical producers, said it wants to avoid entanglements between federal and state law. National action ‘would be preferable to a patchwork of competing state-based standards that could cause confusion and undermine public confidence in our regulatory system,’ the council said in a statement.”…

This content provided by the PFAS Project.