Georgia ruling signals new concerns for PFAS users and wastewater treatment systems

On September 20, 2021, Judge Amy Totenberg, a senior judge on the U.S. District Court for the Northern District of Georgia, issued what she termed an “odyssey” of an Order, totaling 180 pages, in response to 12 motions to dismiss in a per- and polyfluoroalkyl substances, or PFAS, lawsuit, Jarrod Johnson v. 3M, et al., 4:20-cv-00008-AT (N.D. Ga.).

Rate payers and water subscribers in the Rome, Georgia, area filed the suit, alleging that an upstream 9,800-acre land application system (LAS) has polluted, and continues to pollute, their drinking water with the PFAS compounds used by the carpet manufacturing industry in Dalton, Georgia. The suit is one of many filed in Georgia alleging Clean Water Act violations, together with state and common law claims, against PFAS manufacturers and suppliers, carpet manufacturers, and in some cases, the City of Dalton’s water utility companies.

The court largely denied the defendants’ motions, the implications of which are twofold: (1) by casting doubt that LASs are not point sources under the Clean Water Act—an argument not yet addressed by the U.S. Court of Appeals for the Eleventh Circuit—the Order places Georgia’s existing LAS operators in a vulnerable position, operationally, financially, and with regulatory compliance; and (2) the Order indicates a shift toward a more expansive view of potential liability for PFAS exposure damages beyond just PFAS manufacturers.

PFAS and carpet manufacturing

Dalton, Georgia—often referred to as the Carpet Capital of the World—is located in northern Georgia and produces nearly 90 percent of the world’s carpet. PFAS are used throughout the carpet production process to impart stain resistance and durability to carpet fibers. Due to their oil-, water-, and heat-repellant properties, PFAS can persist in the environment with significant longevity.

Discarded PFAS-containing effluent from Dalton’s carpet manufacturers is transported to Dalton Utilities, where the wastewater is land-applied by Dalton’s LAS following certain wastewater treatment measures.

Plaintiffs argue that this land application contributes PFAS into the Conasauga River and its tributaries through hydrological connections, ultimately contaminating downstream communities’ drinking water.

Georgia ruling exposes added vulnerabilities to LAS operators

In its attempts to secure dismissal from the case and, specifically, the Clean Water Act claims, Dalton Utilities argued that its operations are properly permitted under all applicable state and federal regulatory frameworks. Judge Totenberg, however, was persuaded by plaintiffs’ argument that a separate National Pollutant Discharge Elimination System (NPDES) permit may be required for the LAS, as the LAS may be a point source of PFAS pollution.

Under the Clean Water Act, point source designation is a threshold determination for permitting. The typical point source is a discernible pipe discharging pollutants directly into a stream, or the “functional equivalent” of such a discharge, per the U.S. Supreme Court’s recent decision, County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020). LASs incorporate a network of spray nozzles, which irrigate using wastewater over land and, accordingly, do not fit so clearly within the conventional understanding of a point source.

According to Georgia case law, LASs are permitted as nonpoint sources, and many Georgia industries have relied on this conclusion. Consequently, Judge Totenberg’s ruling muddies the water for Georgia’s existing LAS permitting framework by casting doubt as to whether LASs require additional NPDES permitting. Faced with this uncertainty, many existing LASs may halt land application operations or be forced to turn to other less practical and more costly wastewater treatment measures, at least while Georgia, Congress, or federal appellate courts further evaluate the issue.

In the meantime, one thing is clear: LAS operators are now—at least in the Northern District of Georgia—more vulnerable to regulatory actions and civil claims under theories that the systems require additional NPDES permits.

Ruling opens the door to reaching product manufacturers

The Order also provides a new focus in PFAS litigation directed at downstream commercial producers that use the chemicals, rather than solely holding PFAS manufacturers like 3M and DuPont accountable for PFAS environmental remediation claims. The Order specifically noted that plaintiffs “. . . failed to point to any authority from Georgia establishing a duty on the part of a chemical supplier to protect an unknown third-party, rather than its consumer, from harm resulting from the negligent use or disposal of the chemical.” Users such as Dalton’s sophisticated carpet producers, however, are deemed to know the risks of disposal.

Despite Judge Totenberg’s reliance on Georgia law, product manufacturers like Dalton’s carpet producers should heed the Order’s implications on national PFAS litigation and anticipate a heightened risk for liability exposure from litigants seeking remediation costs and damages for alleged PFAS pollution and exposure. It appears that the days of only large-scale PFAS manufacturers bearing the brunt of PFAS pollution and exposure costs may be a thing of the past.