What a Superfund designation for PFAS means for Mainers fighting polluters

A recent U.S. Environmental Protection Agency ruling that designates two so-called forever chemicals as hazardous substances under the federal Superfund law is expected to help those harmed by the toxic substances get compensation for their losses.

The ruling comes at a time when Maine judges haven’t found a direct causal relationship between most paper mills in the state that may have been using the chemicals and homeowners with contaminated wells seeking damages in lawsuits.

The EPA last Friday named two of the most widely studied PFAS, or per- and polyfluoroalkyl substances, as hazardous substances. That will give it more muscle to make polluters pay for cleanup and investigate those that do not , EPA Administrator Michael Regan said when announcing the ruling on April 19. And that could potentially help homeowners such as those in Fairfield, who already have initiated two lawsuits, get payment to take care of health or property issues by identifying the responsible parties earlier and holding them accountable for the cleanup.

“It’s going to make it easier for impacted communities and landowners to recover the costs of that cleanup from the responsible party or parties that released the PFAS into the environment,” said Jonathan Kalmuss-Katz, a senior attorney specializing in toxic exposure and health for Earthjustice, a San Francisco-based nonprofit environmental law firm.

The EPA said it will identify the parties that significantly contribute to the release of the chemicals, including PFAS manufacturers or those that used PFAS in manufacturing processes, federal facilities and other industrial parties. Under the rule, such entities must immediately report releases of the two chemicals that meet or exceed one pound within a 24-hour period to the National Response Center, state, tribal and local emergency responders.

The two human-made chemicals joining the EPA’s hazardous substances list are perfluorooctanoic acid, or PFOA, and perfluorooctanesulfonic acid, or PFOS, both of which have been found in the highest concentrations in the state and nation in some Fairfield wells, according to the Fairfield lawsuits filed by homeowners in that Somerset County town. Some PFAS readings in drinking water there were 14,800 parts per trillion and higher, well above the new EPA mandated level of 4 parts per trillion.

PFAS can get into wells from the spread of contaminated sewage sludge used as farmland fertilizer and from factories that discharge wastewater with the chemicals into nearby waters. PFAS has been linked to various health issues , including kidney and testicular cancers, and decreased birth weights.

It has been difficult for people with contaminated wells and soil to identify the responsible party so they can recoup costs for health and property damages. There is no shortage of prospects being considered, including the companies that spread tainted sludge on farmlands, the regulators that granted permits for the sludge to be spread, the local factories using the chemicals to make products, the chemical makers themselves, or even the EPA for approving the toxic chemicals.

The two Fairfield lawsuits are taking different paths to getting restitution. The first one filed in 2023 by defendant Nathan Saunders of Fairfield and others, initially went after six paper mills: Sappi North America, Kimberly-Clark Corporation, Huhtamaki, International Paper Company, Verso Corporation and Pixelle Specialty Solutions. It was amended in March 2023 to include two waste-handling facilities, Pine Tree Waste Inc. and Soil Preparation Inc., which produced some of the sludge that was spread.

The defendants filed a joint statement to dismiss the case late last year. Judge Michael Duddy of the Business and Consumer Court in Portland in January dismissed claims against all of the defendants except Huhtamaki, saying there is a causal connection between Huhtamaki’s conduct at its Waterville paper mill and the plaintiffs’ injuries. The judge said that wasn’t the case with the other defendants and dismissed the claims against them.

Huhtamaki in March denied the claims against it, asking the court to dismiss all the charges with prejudice, meaning the case would be permanently closed and cannot be brought in front of the court again. Among other things, it said it neither knew, nor should have known, that any of the substances to which the plaintiffs were allegedly exposed were hazardous or presented a reasonable or foreseeable risk of physical harm under prevailing scientific and other knowledge at the time.

The case still is in the discovery stage, according to Saunders, who said he could not comment further. His lawyer, Adam Stoltz, also declined to comment about the case.

The other case, brought by Lawrence Higgins of Fairfield and other affected homeowners, initially included more paper companies, but it was amended in March 2023 to include Huhtamaki and the three chemical companies that allegedly supplied it with the PFAS they make, Solenis, BASF and 3M. That case, filed in the U.S District Court for Maine, also is in the discovery phase, according to Robert Bowcock, an adviser on the case and founder of Integrated Resource Management Inc., a water-related consulting firm in Claremont, California. He is working with environmental activist Erin Brokovich to consult on the Higgins lawsuit.

“We’re not sure to what degree Huhtamaki was told about the dangers of the chemicals and their handling requirements,” he said. “The manufacturers of the chemicals, and the patent holders, are responsible for that.”

Kalmuss-Katz of Earthjustice said the new hazardous waste designations by the EPA have “a lot of teeth” in terms of finding the responsible parties and getting them to clean up.

“They’re going to create a really strong incentive for anybody that is using or releasing PFAS moving forward to prevent environmental releases and do whatever they can to safely manage their PFAS waste,” he said. “They know if they release PFAS into the environment, they’re going to be on the hook for their response costs.”

Lori Valigra is an investigative environment reporter for the BDN’s Maine Focus team. She may be reached at lvaligra@bangordailynews.com. Support for this reporting is provided by the Unity Foundation and donations by BDN readers.