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By Ken Sansone, Senior Partner &  Kyla Tengdin, Education & Outreach, SL Environmental Law Group

Water, airport, fire, sanitary and waste management districts can be impacted by PFAS contamination without knowing it. PFAS (per- and polyfluoroalkyl substances) are also called “forever chemicals” due to their environmental persistence and resistance to traditional water treatment. Manufacturers failed to warn consumers and the U.S. government of the risks associated with PFAS exposure, which include certain cancers, thyroid disorders, ulcerative colitis, infertility and more.

As a funding strategy to help mitigate damage and support related projects, many entities, including special districts, are pursuing litigation against the manufacturers responsible for PFAS contamination. Hundreds of these cases have been consolidated into the Aqueous Film-Forming Foam (AFFF) multi-district litigation (MDL), recently resulting in landmark drinking water settlements from 3M, DuPont, Tyco and BASF totaling more than $14 billion. These settlements, while specific to drinking water providers, show that PFAS manufacturers can be held accountable for contamination.

Claims for PFAS impacts beyond drinking water will continue to be litigated as part of the AFFF MDL and are expected to be resolved by future settlements or litigation. By exploring potential claims, districts may discover new funding opportunities.

Water Districts

Water districts are already feeling the financial impact of PFAS regulatory compliance. Many water providers nationwide are offsetting monitoring and treatment costs with funds from the drinking water settlements mentioned above. All eligible water systems are automatically included as participants in these settlements unless they successfully opted out by the deadlines in 2023. Water districts unsure of their settlement status should consult legal counsel to determine their next steps and avoid missing funding opportunities.

Airports

Airports were required to use aqueous film-forming foam (AFFF) containing the PFAS compounds PFOA and PFOS for emergency fire response and training exercises for decades without being warned of the risks. Now, airports may face expenses for transitioning to PFAS-free foams, testing, remediation, public communication, and potential third-party lawsuits over legacy contamination.

Fire Districts

Fire districts may also be affected by PFAS contamination due to historical AFFF use. Since manufacturers didn’t warn of PFAS risks, training exercises were often conducted in open areas or unlined pits. Rainwater caused PFAS to leach from the soil, contaminating groundwater. Similarly to airports, these sites could already face costs, from replacing firefighting foam, to cleaning or disposing of contaminated equipment, to soil and groundwater remediation.

Sanitary & Public Utility Districts

Although sanitary and public utility districts do not produce or use PFAS, these contaminants are often found in wastewater from residential, industrial, and sometimes stormwater sources. Traditional wastewater treatment cannot destroy PFAS, so contaminants may remain in the treatment residuals, called biosolids. Biosolids have historically been sold or reused as fertilizer, but several states now limit or even ban this practice due to PFAS concerns. Districts may see financial loss from the inability to sell the biosolids as well as increased disposal costs.

Waste Management Districts

Given the widespread presence of PFAS in consumer products and biosolids, landfills often receive waste containing these chemicals, leading to contaminated leachate. To protect nearby soil and water, some landfills send leachate to wastewater plants for treatment, which may trigger high PFAS treatment costs for the plant. This could lead to new and costly disposal challenges for waste management districts.

PFAS Litigation as a Special District Funding Strategy

The PFAS problem was created by companies that knew the risks but chose to continue manufacturing them recklessly for decades. Legal action can hold these manufacturers accountable for pollution while potentially providing funding for districts.

Districts considering legal action as a cost recovery strategy may benefit from early action. There is no guarantee that anticipated settlements for PFAS impacts beyond drinking water will include agencies that did not file their own lawsuits and, even if there were, agencies may be able to increase their potential settlement payouts by bringing their own legal action now. In fact, drinking water providers that filed suit over PFAS before the water systems settlements were announced will recover as much as 25% more than systems that did not. By considering all available funding options, special districts can make more informed and strategic decisions for their communities.