Small water utilities cannot achieve PFAS cleanup on their own

In the United States, 95% of all public water systems have less than 10,000 customers (79% serve fewer than 500 people), and nearly 85% of those systems have three or fewer full-time employees. With such small staffs, many historically have suffered from "management limitations, lack of long-term planning, and difficulty understanding current and future regulations.”

The Environmental Protection Agency has now released final Maximum Contaminant Levels (MCLs) for PFAS (per- and polyfluoroalkyl substances, aka “forever chemicals”) in drinking water. The regulation targets six specific compounds and has two key deadlines: initial monitoring for these PFAS by April 2027 and mitigation of these PFAS, if detected above the MCLs, by April 2029.  

The costs of meeting these two deadlines may include: monitoring and testing; piloting, designing and installing a treatment system; operator training; operation and maintenance of the treatment system; disposal and/or destruction of PFAS-contaminated filter media; and public notification regarding PFAS levels and violations. The EPA has estimated that the costs of monitoring, communication and treatment alone could reach as high as $1.5 billion per year. The costs of not meeting these deadlines may include penalties and liability. 

Unlike their larger counterparts, rural systems often cannot increase rates to fund PFAS mitigation testing and treatment upgrades, as they don’t have enough customers over which they can feasibly spread rate increases. While there is substantial public funding available specifically for PFAS treatment technology, most rural systems are staffed by part-time workers who don’t have the administrative capacity to apply for such funding. 

PFAS Contamination in Rural Areas Often Comes From Outside the Community

Rural water systems are often the dumping ground for pollution from other areas, increasing their treatment burden beyond their capacity. 

Small communities often host landfills that accept the household waste of one or more of their urban neighbors. Due to the enormity of PFAS in everyday consumer products, this waste is often highly contaminated with PFAS compounds, and when water leaches out of a landfill and into the watershed, it carries those PFAS with it.

Additionally, communities are now learning that some Class A biosolids, once heralded as a way to reduce wastewater sludge and relieve landfill pressure by converting human waste into a safe biosolid for crop fertilization, contain high levels of PFAS that, when applied to farms, contaminate the soil and the local watershed through groundwater and stormwater runoff.

Public Funds Can be Part of the Solution

Small public water systems can apply for assistance from several funding programs through the federal government. One of these is the Water Infrastructure Improvements for the Nation (WIIN) Act’s Small, Underserved and Disadvantaged Communities (SUDC) grant program, which provides funding to meet and comply with Safe Drinking Water Act regulations. 

Additionally, the Bipartisan Infrastructure Law is allocating more than $50 billion for investments in the nation’s water infrastructure. However, only $10 billion is specifically available to address PFAS and other contaminants of emerging concern, while $15 billion is specifically available only for lead pipe remediation. The remaining $26 billion is allocated primarily to Drinking Water and Clean Water State Revolving Funds, the use of which will be decided by individual states.

This is all good news — in fact, there has never been as much public funding available for water utility improvement as there is now. However, small budgets may not have room for the loan payments that will be required for large capital investments. And even with grants, systems with an average staff of less than three full-time employees don’t have the time and attention it takes to apply for such funding. Luckily, there are additional ways to secure funds.

Small Water Systems Can Pursue Litigation as a Funding Strategy

Many utilities are seeking to hold polluters accountable for cleaning up the PFAS contamination they caused. Most of these lawsuits have been grouped into a Multi-District Litigation (MDL) under the claim that the plaintiffs were negatively affected by PFAS-laden products. DuPont and its related companies, Chemours and Corteva, offered U.S. public water systems a settlement of $1.2 billion in June 2023, and shortly thereafter, 3M agreed to pay qualifying U.S. public water providers up to $12.5 billion over 13 years. Both settlements received final approval in early 2024. These class settlements apply to all qualifying public water providers unless they expressly opted out. So even if a water system did not file a claim in the MDL, it may be eligible to receive compensation if it submits the appropriate forms and paperwork before the deadlines. Public water systems in Phase 2 (systems that found PFAS in their water sources after the end of June 2023) have until mid-2026 to submit their claims forms to access settlement funds.

Many utilities are turning to law firms with water contamination litigation experience for help joining the PFAS MDL and/or with the settlements’ forms and paperwork. This way utilities can get the financial support they need, without the administrative capacity they don’t have, to solve a problem they didn’t cause but are now on the front lines of fixing.

There are many benefits to seeking experienced support, from having the law firm — rather than the town or utility staff — do the heavy lifting, from completing the paperwork needed, to leaning on a knowledgeable partner to ensure that all documents are properly prepared and submitted, and that the water system can maximize its recovery. 

For utilities worried about costs, many law firms often perform this type of work on a contingency basis, meaning that they will get paid only if a successful outcome is achieved, with no upfront or ongoing costs for the municipality. 

Drinking Water Is Just the First Frontier: Wastewater Will Be Next

Treating drinking water is the first and most important step to prevent humans from ingesting “forever chemicals,” but every time we throw away a Teflon pan, or wash a Gortex jacket, or floss our teeth or conduct thousands of other interactions with existing consumer products that contain PFAS, we introduce more of them into the environment, where they eventually migrate to source water.

Shortly after finalizing the MCLs for drinking water, the EPA also designated PFAS as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act, also known as Superfund. This designation puts wastewater treatment plants affected by PFAS at risk of liability. For now, the EPA says that its enforcement policy will not include pursuing “passive receivers” of PFAS (like wastewater plants and landfills) and instead focus on entities most responsible for releasing PFAS into the environment. However, this non-binding discretion policy provides no guarantees and could change at any time. And the policy carries zero protection from third-party lawsuits. 

In addition to liability concerns, some wastewater utilities are already seeing an increase in biosolids disposal costs in response to new and proposed regulations on how PFAS-laden biosolids are distributed or discarded into the environment — another cost for the industry to bear. 

Now is a good time for municipalities and utilities to seek legal support with experience in water and wastewater contamination to help them navigate this rocky future.

Mike DiGiannantonio is an attorney at SL Environmental Law Group. He represents public entities in water contamination lawsuits, including those involving PFAS, 1,2,3-TCP and perchlorate.