US Department of Defense

March 21, 2024

Warnings of a “wave of lawsuits” as PFAS exemption debated

By Shannon Kelleher

Representatives of US water and waste systems told US lawmakers this week that hundreds of such operations across the nation could face unintended and overwhelming liabilities unless they are exempted from a proposal that would designate two types of per- and polyfluoroalkyl substances (PFAS) as hazardous substances.

The rule proposed by the Environmental Protection Agency (EPA) sets up “multiple avenues to drag innocent parties into extremely costly and complex litigation,” Michael Witt, a lawyer speaking on behalf of a coalition of water groups, told members of the US Senate Committee on Environment and Public Works in a hearing Wednesday.

Witt was one of multiple witnesses to address the committee on the hotly contested issue of how the government should address widespread PFAS environmental contamination. The EPA said in 2022 that it was preparing to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) because they present “a substantial danger to human health or welfare and the environment.”

Such a designation allows the government to order responsible parties to clean up the environmental contamination and bear the costs of mitigation. The “polluter pays’ model is a core principle of CERCLA.

The debate now underway is about whether to provide an exemption from liability for “passive receivers” of PFAS – entities that don’t make or use PFAS but wind up with the chemicals in their water, land and waste. The EPA has said it won’t assign liability to passive receivers, but Witt and others speaking at the hearing said there is still concern that such entities could become embroiled in lawsuits over chemicals they never used or produced.

March 11, 2024

Farmers facing PFAS pollution struggle for solutions

By Shannon Kelleher

When Jim Buckle and his wife, Hannah Hamilton, started their 18-acre organic vegetable farm in Unity, Maine more than a decade ago, they wanted to grow the healthiest food possible. But after a wholesale buyer asked them to test their operation for toxic chemicals called per- and polyfluoroalkyl substances (PFAS) in 2022, the couple was in for a shock.

The soil tests came back clean, as the couple expected. But Buckle’s heart sank when the results arrived for the well water they used to wash and irrigate their vegetables. Through no fault of their own, the farm Buckle and Hamilton had carefully cultivated for nearly a decade was contaminated with PFAS-laced sewage sludge that had been used as fertilizer on land nearby years earlier.

Faced with evidence that their harvests were also likely contaminated with potentially hazardous PFAS toxins, he and Hamilton made the decision to close down their farming operations, at least temporarily, as they wrestled with how they might clean up their farm and protect it from future contamination.

“We said, ‘wow, this is crazy. We actually have this problem,’” Buckle said.

About a year earlier, first-generation organic farmers Katia Holmes and her husband faced a similar crisis on their 700-acre Misty Brook Farm in Albion, Maine, where they raise livestock and grow grains. In their case, the well water was fine, said Holmes. But testing of their cows’ milk – and the hay they bought from a neighbor to feed the cows – came back with elevated levels of PFAS.

Further testing revealed that a previous owner of the Holmes’ land had spread sewer sludge on certain fields 20 years ago, leaving behind PFAS in the soil.

“We called all the stores and pulled all our products,” said Holmes.

Buckle’s and Holmes’ stories are, sadly, becoming more common.