Paul Quackenbush

—

Per- and polyfluoroalkyl substances (PFAS) have become the subject of public outrage in recent years after revelations that manufacturers of these chemicals have long known of their potential dangers but hid this knowledge from the public.^[1] In one of the most infamous examples, DuPont chemical company knowingly disposed of one type of toxic perfluoroalkyl substance for over fifty years in unlined pits, contaminating the drinking water of more than 100,000 people in West Virginia and Ohio near DuPont’s Washington Works facility.^[2] The Washington Works case has spurred a class-action lawsuit involving 80,000 plaintiffs that settled for $343 million, a documentary, and a feature film, and has helped focus public attention on this toxic and environmentally persistent class of chemicals.^[3] Despite increased public scrutiny, the federal government has been slow to regulate PFAS.^[4] The Environmental Protection Agency (EPA) has not yet promulgated a legally enforceable standard for any of the more than 4,700 individual chemicals in the PFAS group, in part, due to the still incomplete understanding of the effects of PFAS on human health.^[5] In the absence of formal federal regulation, a handful of states have begun to regulate PFAS, primarily in drinking water.^[6] Yet few state regulations exist that address PFAS waste, which contaminates soil, groundwater, and other media, despite the growing realization that contamination from PFAS waste is widespread.^[7]

Congress seemingly designed § 7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA) for just this scenario, since it “unleash[es] an army of private attorneys general to force cleanups when the government drags its feet.”^[8] This citizen suit provision permits “any person [to] commence a civil action on his own behalf against any person . . . who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.”^[9] While demonstrating an “imminent and substantial endangerment” appears to present a significant burden to a potential plaintiff, courts have interpreted this statutory language liberally, in some cases allowing the statute to “eliminate any risk posed by toxic wastes.”^[10] These broad judicial interpretations suggest that RCRA § 7002(a)(1)(B) (§ 7002(a)(1)(B)) may present an important stopgap mechanism to address PFAS contamination in the absence of significant federal action.[11]

 

Part I of this Note provides background information regarding PFAS, RCRA, and § 7002(a)(1)(B). Part II considers whether PFAS waste may constitute an “imminent and substantial endangerment” under RCRA’s citizen suit provision, despite the absence of a legally enforceable federal standard for these chemicals. Finally, Part III considers the implications of liability under § 7002(a)(1)(B) and discusses whether this provision is the appropriate mechanism to address the problem of PFAS waste.

 

[1] Sharon Lerner, 3M Knew About the Dangers of PFOA and PFOS Decades Ago, Internal Documents Show, The Intercept (Jul. 31, 2018), https://theintercept.com/2018/07/31/3m-pfas-minnesota-pfoa-pfos/.

[2] Nathaniel Rich, The Lawyer Who Became DuPont’s Worst Nightmare, N.Y. Times Magazine (Jan. 6, 2016), https://www.nytimes.com/2016/01/10/magazine/the-lawyer-who-became-duponts-worst-nightmare.html.

[3] Parkersburg, West Virginia, Northeastern Univ. Social Sci. Envtl. Health Research Inst., https://pfasproject.com/parkersburg-west-virginia/ (last visited Nov. 27, 2019); The Devil We Know, https://thedevilweknow.com/ (last visited Nov. 27, 2019); Dark Waters, Focus Features, https://www.focusfeatures.com/dark-waters (last visited Nov. 27, 2019).

[4] John Flesher & Ellen Knickmeyer, EPA Too Slow On Limiting Toxic Chemicals, Critics Say, AP News (Feb. 14, 2019), https://www.apnews.com/0f53065e7b914c0898001539257de85e.

[5] Ctrs. for Disease Control and Prevention, An Overview of Perfluoroalkyl and Polyfluoroalkyl Substances and Interim Guidance for Clinicians Responding to Patient Exposure Concerns 2 (2018), https://www.atsdr.cdc.gov/pfas/docs/pfas_clinician_fact_sheet_508.pdf; Org. for Econ. Co-operation and Dev., Toward a New Comprehensive Global Database of Per- and Polyfluoroalkyl Substances (PFASs): Summary Report on Updating the OECD 2007 List of Per- and Polyfluoroalkyl Substances (PFASs) 6 (2018), http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=ENV-JM-MONO(2018)7&doclanguage=en; see In re E.I. du Pont de Nemours & Co., Order on Consent 4 (U.S. Envtl. Protection Agency Nov. 20, 2006), https://www.epa.gov/sites/production/files/2016-05/documents/sdwadupont06.pdf (“The available data do not provide a definitive picture of the presence or absence of [PFOA] effects on human health, and this subject merits further study.”).

[6] See Per- And Polyfluoroalkyl Substances (Pfas), Assoc. of State Drinking Water Administrators (2019), https://www.asdwa.org/pfas/ (listing state standards).

[7] Id.; Monica Amarelo, Mapping the PFAs Contamination Crisis: New Data Shows 610 Sites in 43 States, Environmental Working Group (May 6, 2019), https://www.ewg.org/release/mapping-pfas-contaminationcrisis-new-data-show-610-sites-43-states.

[8] AM Intern, Inc. v. Datacard Corp., 106 F.3d 1342, 1349 (7th Cir. 1997).

[9] 42 U.S.C. § 6972(a)(1)(B) (2012).

[10] Easler v. Hoechst Celanese Corp., No. CIV.A. 7:14-00048-TM, 2014 WL 3868022, at *5 (D.S.C. Aug. 5, 2014) (quotation omitted); RCRA Imminent and Substantial Endangerment Suits, Levenfeld Pearlstein LLC. (Nov. 23, 2012), https://www.lplegal.com/content/rcra-imminent-and-substantial-endangerment-suits.

[11] See infra Part II (discussing whether PFAS waste qualifies as an “imminent and substantial endangerment” under RCRA’s citizen suit provision).