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The ABCs of Emerging Contaminants

  

Published in Michigan Environmental Law Journal, Spring 2018, Vol. 36, No. 1, Issue 104 [view full issue].
Cite: 36 Mich Env Law J 1 (2018)

by Charles M. Denton, Partner, Barnes & Thornburg LLP

denton.jpg"Emerging Contaminants" like perfluorinated chemicals (PFAS) seem to be everywhere these days—from agencies to backyards to courts. This article builds on the prior Perfluoroalkyl Compounds: An Emerging Contaminant in Michigan in the MELJ Fall 2017 issue. That article described the PFAS group of compounds and their prior industrial, commercial, and household uses over the last many decades (but yet still considered an "emerging" contaminant), as well as their potential toxicity. Since that article, there have been some potentially significant developments in the PFAS landscape across a spectrum of interests.

Environmental and toxic tort lawyers are constantly addressing "emerging" contaminants, and the issues and challenges arising from the current focus on PFAS are just the latest chapter in this constantly evolving environmental compliance and enforcement arena. It can be helpful to think about lessons learned from prior "emerging" contaminants in our environmental regulatory history, such as polychlorinated biphenyls (PCBs), dioxins/furans, tri- (TCE) and tetrachloroethylene (PCE), mercury, 1,4-dioxane, asbestos, and so forth. One of those lessons learned is that sometimes public perceptions, product liability, and even regulation can get ahead of sound science, but it also can be that lawsuits and the media can compel focus by regulators and the regulated community on potential new environmental and public health risks.

PFASs in the Agencies

While U.S. EPA has published a health advisory guideline of 70 parts per trillion (ppt) for combined PFAS, that is not a federally enforceable standard. This is especially so considering recent U.S. Department of Justice (DOJ) confirmation that guidance documents are not enforceable.[1] Therefore, other agencies at the federal, state, and local levels are left to develop and enforce clean-up standards for PFAS, or await the outcome of an uncertain US EPA rule promulgation.

In Michigan, on January 10, 2018, the Michigan Department of Environmental Quality (MDEQ) established a groundwater clean-up criterion for PFAS of 70 ppt, obviously based on the U.S. EPA guidance.[2] This groundwater criterion was promulgated by MDEQ even while an ongoing, comprehensive rulemaking package for Michigan's clean-up criteria pursuant to Part 201 of the Natural Resources and Environmental Protection Act (NREPA) continues through a public comment process. This proposed PFAS criterion had been part of that larger package from last August 2017, but MDEQ was determined to have this criterion be immediately effective. MDEQ may justify this different treatment of PFAS as compared with other hazardous substances because there had previously been no clean-up criteria for PFAS, so it is not a modification of an existing Part 201 standard. It also appears that the inputs for calculating the U.S. EPA health advisory level were different than the standard Safe Drinking Water Act maximum contaminant level calculations, which would result in a higher allowable concentration of PFAS. Interestingly, MDEQ did not promulgate an immediately effective soil criteria for PFAS.

There is also a surface water quality standard for both PFOS and PFOA under Rule 57 of NREPA Part 31, which therefore is the groundwater/surface water interface (GSI) clean-up criteria under Part 201. The Part 201 clean-up GSI criteria for PFOS is 12 ppt for most waters of the State, but if the groundwater discharges into a surface water that is used for drinking water, then the standard is 11 ppt; the GSI criteria for PFOA is 12,000 ppt for most waters of the State, but if discharged into surface water that is used for drinking water, then the standard is 420 ppt.

While there is a legally enforceable PFAS groundwater limit in Michigan, this criterion is clearly interim and is based on the creation of Michigan's PFAS Action Response Team charged with reviewing public health and environmental science information about PFAS and preparing recommendations within six months for acceptable PFAS levels.

PFASs in Your Backyards

Meanwhile, with the heightened scrutiny on these "emerging" contaminants with extremely low criteria, PFAS are being found across a wide away of properties, ranging from airports to landfills to golf courses.[3] Despite the newly promulgated PFAS groundwater clean-up criteria, there remains substantial uncertainty about what to do with these discoveries, both in terms of remediation and risk management going forward and seeking to impose retroactive responsibility. The former is part of a typical MDEQ Part 201 remediation process, and the latter is being fought out in the courts.

PFASs in the Courts

The same date the new MDEQ clean-up criterion for PFAS became effective, the State sued Wolverine World Wide in Federal Court for declaratory and injunctive relief.[4] The MDEQ complaint alleges, among other things, that Wolverine's waste disposal has resulted in releases of PFAS in excess of applicable Michigan clean-up criteria, and that these releases present an "imminent and substantial endangerment to human health and the environment." The causes of action alleged are pursuant to the Federal Resource Conservation and Recovery Act citizens' suit provision (42 USC 6972(a)(1)(B)); NREPA Part 201 Remediation; and NREPA Part 31 prohibiting the discharge of injurious substances into the "Waters of the State" and which also may constitute a public nuisance.

There are also pending and overtly threatened lawsuits by Wolverine's neighbors in Rockford numbering perhaps over 100, claiming personal injury (including wrongful death) and property damage (including diminution in property values). There is a putative class action filed in Federal Court against Wolverine, 3M Company, and Waste Management.[5] The plaintiffs in that case allege various common law causes of action, including trespass, nuisance, product liability, fraudulent concealment, and emotional distress. Wolverine's responses to the various State Court cases filed in Kent County Circuit Court by individual households assert factually that "the plaintiffs in these cases have safe drinking water, and there is no immediacy to the present litigation."[6] Legally, Wolverine argues that the multitude of state cases should be dismissed on summary disposition in favor of the Federal Court class action, which arguably encompasses all of the same plaintiffs and claims.

The 2010 lawsuit by the state of Minnesota against 3M Company may provide some guidance for how these recently filed Michigan cases might proceed. The Minnesota litigation originally focused on natural resources, such as fish and waterways, but then evolved into public health-based allegations. After eight years of litigation, on the eve of a jury trial, a settlement was announced on February 20, 2018. The settlement provides $850 Million for various water resources projects, and avoided potential punitive damages and any judicial determination as to PFAS health claims.

Conclusion

Environmental lawyers are accustomed to practicing in a world filled with acronyms and an "alphabet soup" of jargon. The latest in a long history of "emerging" contaminants—PFAS—have generated as much local and national (and even international) attention as any environmental, health and safety concerns of the last few decades. As these contaminants continue to "emerge" in the agencies, backyards, and courts, these developments are worthy of monitoring and there will certainly be lessons learned for remediation and litigation practitioners.


[1] U.S. Department of Justice, Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases (January 25, 2018) (accessed March 23, 2018).

[2] Michigan Department of Environmental Quality, State Takes Action to Strengthen Environmental Criteria in Response to PFAS Contamination (January 9, 2018) (accessed March 23, 2018).

[3] See Tower, DEQ pushes Grand Rapids airport to test for toxic chemical used by firefighters, MLive (March 30, 2018) (accessed April 23, 2018); Ellison, High PFAS levels spark well testing near Montcalm County landfill, MLive (April 24, 2018) (accessed April 24, 2018); Tunison, Battle Creek Air National Guard Base to test for PFAS contamination, MLive (April 11, 2018) (accessed April 23, 2018); Ellison, Michigan is cracking down on PFAS in wastewater plants, MLive (March 21, 2018) (accessed April 23, 2018).

[4] MDEQ v Wolverine World Wide, Inc., No. 1:18-cv-00039 (WD Mich).

[5] Zimmerman, et al. v 3M Company, et al., No. 1:17-cv-01062 (WD Mich).

[6] Ryfiak et al. v Wolverine, Case No 2018-00386-CZ, Defendant's Motion and Brief for Summary Disposition, p 2.


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