Emerging Contaminants and NRD Litigation
Several federal statutes provide for the recovery of natural resource damages (NRD), including the Clean Water Act; the Oil Pollution Act of 1990; the National Marine Sanctuaries Act; the Park System Resource Protection Act; and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), with most NRD actions arising under CERCLA. That said, many emerging contaminants, including perfluorinated chemicals such as PFOA and PFOS, are not yet listed as “hazardous substances” under CERCLA. Further, those few emerging contaminants that have been identified as “hazardous substances” under CERCLA, such as 1,4-dioxane, N-Nitroso-dimethylamine (NDMA), dinitrotoluene, and tungsten, still lack legally enforceable MCLs at the federal level.
As a result, many NRD sites and NRD cases in which emerging contaminants are at issue are sites and cases arising under state NRD statutes, rather than CERCLA or one of the other federal NRD statutes. Indeed, when it comes to regulating emerging contaminants, several states are ahead of EPA and the federal government. For example, California added PFOA and PFOS to its Proposition 65 list in 2017, with reproductive toxicity listed as the endpoint. New York State officially identified PFOA and PFOS as “hazardous substances” in 2016, and claims to have been the first state in the nation to do so. Vermont, New Hampshire, Michigan, Minnesota, and Alaska are among states that have also established cleanup levels for PFOA and PFOS, and New Jersey has developed MCLs for PFOA and perfluorononanoic acid (PFNA) in drinking water.
States are also leading the way in NRD litigation. In State of Minnesota v. 3M Company, No. 27-cv-10-28862 (Minn. D. Ct.), Minnesota’s attorney general filed an NRD suit on behalf of the state for damages for impacts from perfluorinated compounds pursuant to the Minnesota Environmental Response and Liability Act, which defines “hazardous substances” more broadly than CERCLA does. That litigation settled in February 2018 for $850 million. In addition, New Jersey’s January 2018 Report of the Environment and Energy Transition Advisory Committee (submitted to then Governor-elect Phil Murphy) specifically recommends that the state consider actively pursuing NRD actions for contamination from perfluorinated chemicals.
While CERCLA does not (yet) include PFOA or PFOS and certain other emerging contaminants as hazardous substances, the combination of state regulation of these compounds and state-based NRD statutes raises the likelihood that certain of these emerging contaminants will be identified at NRD sites. In fact, notwithstanding that CERCLA does not yet identify PFOA as a “hazardous substance,” EPA added the Saint-Gobain Performance Plastics Site in Hoosick Falls, New York, to the Superfund National Priorities List in 2017. The primary contaminants at issue there are PFOA and trichloroethylene. Furthermore, while EPA’s action plan for perfluorinated chemicals indicates that EPA has not yet started to establish drinking water limits for PFOA and PFOS, the EPA now reports that it has started the regulatory process to list PFOA and PFOS as “hazardous substances” under CERCLA. Given all these factors, it is not a stretch to imagine that federal trustees may initiate CERCLA NRD assessments at sites where perfluorinated compounds are at issue.
Looking Ahead: Which Emerging Contaminants Might Appear at Your NRD Site?
Despite the lack of certainty of the environmental or ecological impacts of these compounds, significant concerns surrounding some emerging contaminants have already made them the focus of some NRD assessments. As mentioned above, NRD claims have been brought for perfluorinated compound contamination in Minnesota (3M Cottage Grove), and NRD assessments have also been performed for perchlorate (e.g., Textron Systems/Mass Military Reservation, Massachusetts); 1,4-dioxane (e.g., Nuclear Metals Superfund site in Concord, Massachusetts, and the Hanford Site in Hanford, Washington); and polybrominated diphenyl ethers (e.g., Portland Harbor, Oregon, and Hudson River, New York).
To determine whether these examples are just anomalies or whether emerging contaminants are likely to become more prevalent at other NRD sites, we reviewed available occurrence data for these chemicals to determine which are more prevalent at sites across the country. Based on data from the third Unregulated Contaminant Monitoring Rule (UCMR 3), pursuant to which EPA mandates sampling of drinking water supplies for certain emerging contaminants,1,4-dioxane and perfluorinated compounds, including PFOS and PFOA, are widespread across U.S. drinking water supplies (Figure 1). In addition, UCMR 3 required sampling for 1,2,3-trichloropropane (TCP), which is also detected regionally in areas such as New York, Florida, and California. Data collected at Superfund sites indicates that 1,4-dioxane; 2,4,6-trinitrotoluene (TNT); and Hexahydro-1,3,5-trinitro-1,3,5-triazine (RDX) have also been frequently detected at such sites.