Prominent in environmental blogs, articles, and webinars this year are both Environmental Justice and per- and polyfluoroalkyl substances (PFAS). Both are in the news again below.
RCRA Settlement
Details were sparse (including the date of the violation) but the U.S. Environmental Protection Agency (EPA) announced on June 28, 2021, a settlement with Safety Kleen Systems, Inc.
This settlement was to resolve alleged violations of the Resource Conservation and Recovery Act (RCRA) at the company’s facility in Dolton, Illinois. The settlement includes a $350,000 civil penalty.
Treatment Unauthorized
According to the press release: “EPA alleged that Safety-Kleen violated RCRA by treating hazardous waste in thin-film evaporators that were not authorized in Safety-Kleen’s RCRA permit to treat hazardous waste. Maintaining permit coverage to correctly treat hazardous waste ensures that hazardous waste is controlled from the time it is generated until its ultimate disposal. EPA also alleged that Safety-Kleen violated several conditions of its RCRA permit and federally authorized Illinois RCRA regulations.”
The EPA states at the end of the press release that “The Dolton facility is located in a community with environmental justice concerns” (emphasis added). There was no explanation beyond that.
It is not clear if EJ played a role in this case or if it was just a mention after the fact. However, we (and others) have shared numerous times, that the EJ Program under the Biden Administration will play a significant role in environmental enforcement and permitting.
RCRA dates back to 1976 (with subsequent amendments) and includes a labyrinth of regulations that can be nuanced. If you have RCRA questions, you can contact my colleague, John Collins who has extensive experience from a generator perspective, Treatment Storage and Disposal Facility perspective, and working for a state regulator.
(Image by Malachi Witt from Pixabay).
PFAS Settlement
While not near the settlement that was announced earlier this year involving the same companies (see below) Dupont, Chemours and Corteva agreed to pay $50 million for PFAS impacts.
According to several news outlets, DuPont Co. ($12.5 million), Corteva ($12.5 million), and Chemours ($25 million) will pay a total of $50 million to the state of Delaware to address PFAS contamination.
The Detroit News reports, “The settlement is the result of an investigation led by the attorney general’s office into the environmental impacts of legacy industrial activities in Delaware, the department said. That investigation is ongoing and the department said it is expected to result in additional recoveries from other parties or enforcement actions.”
Settlement Agreement
With respect to how the $50 million would be allocated, according to Settlement Agreement:
“Other than costs, fees and expenses, the Trust, including any interest earned or any other appreciation in value, shall be used solely for the following:
2.3.1 Environmental Media Assessments. Environmental Media includes air, water, soil, sediment, and biota. The Trust may be used to pay costs associated with planning, execution, sampling and analysis, and assessment of data derived from environmental sampling of contaminants, including PFAS in Environmental Media.
2.3.2 Environmental and Natural Resource Enhancement Projects. The Trust may be used to support projects that restore and enhance aquatic resources, wildlife, habitat, fishing, drinking water, natural resource improvement, and outdoor recreational opportunities in Delaware.
2.3.3 Environmental and Natural Resource Research and Development Initiatives. The Trust may support research and development that will contribute to environmental and natural resource initiatives in Delaware, including but not limited to university grants in support of environmental distribution assessment of contaminants and PFAS detection and abatement technologies in Environmental Media.
2.3.4 Delaware Community Environmental Justice and Equity Grants. The Trust may finance community environmental justice and equity grants, including for community health clinics and initiatives in communities located near historic industrial and manufacturing areas or areas known or suspected to be impacted by PFAS contamination” (emphasis added).
As in the previously discussed enforcement action, we don’t know if Environmental Justice played a role in the settlement or if it was an add-on.
Previous Significant PFAS Settlements
The list of PFAS settlements continues to grow as do the size of the settlements. Recalling the 2018 3M settlement that approached one billion dollars and thinking that was a staggering number. Now it’s just another big pay out.
- On January 22, 2021, DuPont de Nemours Inc., Chemours Co., and Corteva, Inc. agreed to a $4 billion settlement for environmental liabilities stemming from PFAS pollution. In addition, an $83 million settlement was reached by the same companies with numerous plaintiffs in an Ohio Multi District Litigation (MDL) established to litigate PFAS personal injury claims.
- In January 2021, Johnson Controls/Tyco agreed to pay $17.5 million to resolve lawsuits from hundreds of homeowners in Peshtigo, Wisconsin claiming their water was contaminated by chemicals in a firefighting foam manufactured by Johnson Controls.
- On February 20, 2018, the state of Minnesota settled its lawsuit against the 3M Company in return for a settlement of $850 million.
- In February 2017, DuPont and Chemours Co agreed to pay $671 million to settle thousands of lawsuits involving a leak of a toxic chemical used to make Teflon.
More Companies Being Named in PFAS Lawsuits
As PFAS litigation continues, expect downstream companies to get pulled into the lawsuits. The Washington Legal Foundation wrote, “The sheer number of PFAS uses, the already widening circle of PFAS litigation, and plaintiffs’ successful settlements in several high-profile cases send clear signals that more litigation can be expected against an increasing array of downstream users of these chemicals.”
Over a year ago the State of Michigan announced they were suing the following companies for PFAS contamination:
- 3M
- DuPont
- The Chemours Co.
- The Chemours Co. FC LLX
- Corteva Inc.
- Dyneon LLC
- Archroma entities
- Arkema entities
- AGC Chemicals Americas Inc.
- Daikin Industries entities
- Solvay Specialty Polymers, USA LLC
- Asahi Kasei Plastics North America Inc.
PFAS litigation will likely continue as will the number of companies named. Many of the disputes are apt to come down to who is responsible and how do you prove it. If this is where you are (or headed), our Environmental Forensics approach may be helpful.
If you are tracking PFAS developments, be sure to check out our PFAS Resources Page.
If you have any questions about anything we covered, contact Jeffrey Bolin, M.S. at 248-932-0228 Ext. 125.
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