This paper uses the current per- and polyfluoroalkyl substances (PFAS) crisis to argue that shifts must occur in the area of environmental law to address the increasing number of emerging contaminants and the hazards they pose to health and safety. Two statutes that, if amended, would improve the government’s ability to respond to environmental contamination are the Safe Drinking Water Act (SDWA) and Comprehensive Environmental Response, Compensation, and Liability (CERCLA). This paper explains how these current statutes are failing and what can be done to improve the nation’s response to emerging contaminants, like PFAS.

PFAS are a group of chemicals that have been in use since the 1950s. PFAS is a broad, umbrella term that encompasses chemicals including perfluorooctanoic acid (PFOA), perfluorinated compounds (PFC), and perfluorooctane sulfonate (PFOS). The chemicals were produced for decades for use in firefighting foam, stain and soil repellents, greaseproof, food contact paper, and cookware. 

Over time, the commercially useful chemicals began to seep into lakes, rivers, and the drinking water supply—becoming a human health risk and the subject of litigation across the country. States, wanting to protect their residents from contaminated drinking water, have largely been left to their own devices, having only state and common law claims for legal justification in courtrooms. Some states started to institute their own drinking water contaminant levels for PFAS.

The lack of federal statutes and regulations around PFAS significantly impacts the effectiveness of litigation and how quickly courts offer resolutions for victims across the nation. While Congress has made some attempts to pass legislation that would offer a solution to thousands of communities, not all of the legislation would offer a legal cause of action. Nor would congressional action on a single group of contaminants fix the root of the issue, the speed of chemical production and subsequent drinking water contamination, which requires larger, systemic reform to prevent and remedy.

Originally, SDWA and CERCLA were meant to solve this problem. SDWA was passed in 1974 to protect the quality of drinking water by authorizing the Environmental Protection Agency (EPA) to establish minimum standards for drinking water. Delegating the power of chemical regulation and determining what level of said chemicals are safe for humans to the EPA initially allowed for a quicker response to new chemicals. Unfortunately, amendments to SDWA in 1996, meant to increase regulatory flexibility and encourage the agency to focus resources on chemicals posing the greatest health risks, created a risk-based approach for selecting contaminants for regulation. The new approach slowed down the EPA’s process and ability to respond to emerging chemicals, like PFAs, and compromised human health as a result.

CERCLA was meant to complement environmental regulations in place at the time of its passage, like SDWA, and expedite responses to environmental contaminants. As a result, CERCLA extends strict liability to releases of hazardous substances. The EPA, in carrying out CERLA, lists contaminated sites and then can take steps to remediate sites, while using CERCLA to hold those responsible for the release liable. Unfortunately, even though hazardous substance is defined broadly, the statute has yet to be extended to PFAS, highlighting a concern with CERLA’s ability to respond to emerging contaminants with long-term health and environmental risks.

While this paper specifically examines instances of PFAS contamination, the prevalence of PFAS-contaminated sites offers a glimpse of a larger problem when reviewing emerging contaminants that may pose a risk to human health. Federal agencies are not empowered to the level necessary to review all chemicals that are in our communities and that are being produced. Until change occurs in how the federal government handles emerging contaminants, there will likely be further discoveries of widespread, prevalent chemicals in our communities and concerns over their long-term implications on human health and the environment.

This paper will first examine why PFAS are a health and environmental concern, then it will focus on the 1996 amendments to the SDWA and the passage of CERCLA. After examining the concern and historical background, this paper will discuss current avenues of litigation used by states and private parties, how current avenues of litigation fall short at delivering justice, and will discuss proposed PFAS-specific legislative action. Finally, the paper will examine how amending SDWA to its pre-1996 condition and amending CERCLA would not only assist parties in seeking a legal remedy but could prevent the next emerging chemical—the next PFAS—from risking public health and safety. This would offer a stronger solution to the underlying concern than any lawsuit or proposed piece of legislation on PFAS.