PFAS Compounds vs. Legionella -- Which is the bigger threat?

Posted on October 2, 2018 by Kenneth Gray

 

Recently, Per- and Poly-Fluoroalkyl Substance (PFAS) compounds have been dominating the national environmental news.  U.S. E.P.A. has named them as a priority for action.  In the several areas where the substances are found in groundwater, PFAS compounds dominate the local headlines.  The levels of detection and possible concern are extremely low, and the chemicals are almost ubiquitous in the environment, having been used for decades.  As manufactured chemicals, they suffer the usual popular and misguided presumption that they must therefore be bad, and there are manufacturers, industrial users, and water suppliers that have been the targets of anger and lawsuits. 

EPA’s national drinking water monitoring program for “unregulated contaminants” captured PFAS compounds several years ago, and significantly more testing is being undertaken. The former “emerging contaminants” have emerged with a vengeance.  https://bit.ly/2xnGi89  EPA soon will be providing additional guidance on risk levels for some PFAS compounds, and has recently committed to consider a national drinking water standard, among other possible regulatory actions.

Legionella pneumophila (Legionella) is a common bacteria that is found in nature, but can proliferate in certain human environments including hot water systems, shower heads and sinks, cooling towers, and hot tubs, among others, despite central treatment of drinking water.  Legionnaires Disease (LD) can and does kill, especially attacking those with weaker immune systems.  It is the most significant waterborne disease (about 60% of the outbreaks causing disease, and it is the only one causing death).  Data indicate that the disease is significantly on the rise around the country (only partly due to increased detection).   Where LD is discovered and results in illness and deaths, the disease has gotten significant press.  However, U.S. E.P.A. hasn’t yet called for national monitoring for Legionella, and there is no EPA-approved test method.  Although central treatment for bacteria and viruses is addressed in part by public water system disinfection, post-treatment testing and proliferation of Legionella hasn’t been formally addressed.

Scientists would agree that there are risks from PFAS compounds, but the toxicology is still developing and the most robust epidemiological data available do not indicate some of the risks suggested by some animal studies.  There is no such debate on Legionella – it is documented as a serious human health threat and has caused many deaths. The U.S.C.D.C. has indicated 90% of LD cases could have been prevented with better water safety management. While PFAS compounds can be tricky to test for and drinking water levels are being set in lower and lower parts per trillion, Legionella is easy and inexpensive to test for, and accurate, easy and cost-effective methods already exist.

Despite all this, PFAS compounds get more attention from media and regulators, and employ more laboratories and plaintiffs’ lawyers.  Like some current and former drinking water officials I know, I fear we are not focusing on the bigger health threat. 

Your thoughts? Let the informed debate begin.

 

Harvey and Hindsight

Posted on October 10, 2017 by Tracy Hester

There’s nothing like a good catastrophe to make your typical disaster planning look bad.

You hear the word “unprecedented” a lot in Houston these days.  Hurricane Harvey brought an astonishing 50.1 inches of rain to the Houston region over three days, which means the storm effectively provided our entire annual rainfall within the space of three weeks.  The deluge damaged 195,714 homes in Texas, forced over 7,500 Texans into emergency shelters, shut down power and transportation to thousands more, and triggered hundreds of inspiring do-it-yourself rescue missions as flooded neighbors helped each other when official high water rescue teams faced impossible demands.

The environmental cost was, also, “unprecedented.”  Even Tropical Storm Allison and Hurricane Ike did not cause the scale of refinery shutdowns, upset emissions, wastewater treatment system disruption, and chemical plant incidents (including spectacular explosions and fires at the Arkema chemical plant) that we saw in the greater Houston region during Harvey.  At least 13 CERCLA sites in the greater Houston area flooded, and EPA was unable to even access numerous sites for over a week to assess any damages or identify any releases.

“Unprecedented,” however, has a different connotation when viewed through a legal lens.  The post-Harvey environmental liability battles have only just begun, and they promise to raise a broad array of challenging legal issues.  The flooding damage lawsuits alone (including takings claims against the U.S. Army Corps of Engineers) are multiplying fast.  In particular, EPA has already contacted PRPs at some flooded CERCLA sites to demand that they respond to hazardous substance releases – which might have some ACOEL members closely scrutinizing the model reopener provisions and the scope of covenants not to sue in their clients’ consent decrees.  The Act of God defense will likely get a fresh re-examination, including arguments about how to apply it when hurricanes – even massive ones - are not exactly a surprise in the Gulf Coast region.  And fires, explosions, and discharges at facilities could turn a spotlight onto the scope of the general duty clause under Section 112r of the Clean Air Act and the legal penalties for inaccurate or delayed initial release reports under CERCLA and other statutes.

In the long run, Texas and Houston – and other coastal states, counties, cities and towns– will need to revise their disaster frameworks to anticipate and account for Harvey-type storms into the future.  These storms are no longer, unfortunately, “unprecedented,” and the standard terms of consent decrees and agreed orders on liability for secondary releases from post-remediation incidents will need a lot more scrutiny than they’ve typically received.  

From High Within the Ivory Tower, the Tenth Circuit Decides That a Third-Party Liability Policy Doesn’t Cover Third-Party Environmental Liabilities

Posted on October 9, 2017 by Thomas Hnasko

In an unpublished decision in Taos Ski Valley, Inc. v. Nova Casualty Co., the Tenth Circuit decided the so-called “owned or occupied property” exclusion in a third-party comprehensive general liability (“CGL”) policy barred coverage for the third-party damage claims asserted by the New Mexico Environment Department against Taos Ski Valley (“TSV”) because the petroleum-product contamination, through the expedient efforts of TSV, was successfully confined to the boundaries of property occupied by TSV and did not impact groundwater, a third-party resource owned by the State of New Mexico.  In so doing, the Court reasoned language added to the owned or occupied property exclusion, which barred coverage for damage to the insured’s property “for any reason,” was sufficient to disclaim coverage.

The Tenth Circuit was not persuaded by the reasoning of Judge Pozner and others that, under a CGL policy, the location of the damage is immaterial; rather, it matters only that the damage caused an immediate third-party liability instead of damage only to the insured’s first-party property interests.  Moreover, the Court was not persuaded by the argument that environmental practitioners can now advise their clients to defer environmental clean-ups until property owned by the public (as a third party), i.e., the groundwater aquifer, is damaged.  The Court summarily concluded that, in such an event, the policy would foreclose coverage on another basis, because the damage to the groundwater would be expected and intended by the insured.  Certainly any environmental practitioner knows this is pure folly.  Simply instructing an environmental consultant to schedule the groundwater sampling on Thursday, as opposed to Tuesday, might well do the trick to ensure publicly-owned water resources, as opposed to just soil, suffer environmental harm and trigger coverage under the CGL policy.  More importantly, it is unfortunate the Court actually believes the New Mexico Supreme Court, as a matter of state law, would sanction a result encouraging the pollution of our resources, instead of prompt environmental clean-ups, in order to secure insurance coverage.  Claims of environmental contamination, after all, constitute damage to the public, as a third party, whether damage occurs within or outside of the boundaries of property owned or occupied by the insured.