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Published in Economic Development

PFAS: Legal evolution

BY Sunday, March 17, 2019 10:21pm

The practice of environmental law in the United States has evolved to better define who is liable for contamination cleanups.

That’s according to veteran environmental lawyer Alan Schwartz, a member of Grand Rapids-based Miller, Johnson, Snell & Cummiskey PLC.

Alan Schwartz, Miller, Johnson, Snell & Cummiskey PLC.

“Back in the 1980s, laws at the federal level were just coming out, and most people didn’t understand what they meant and they didn’t know how they would apply in practice,” Schwartz said.

It was seven or eight years after the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was enacted that people realized they could be potentially liable for cleaning up a site just by buying it, he said.

With that realization came prodigious litigation under Superfund. Cynics joked that CERCLA stood for the Full Employment Act for Lawyers.

“Then in the ’80s and early ’90s, people began to realize that litigating environmental issues was cost prohibitive,” Schwartz said. “Nothing got done while the litigation was going on and it cost way too much, so it moved more to an administrative process, especially at Superfund sites.”

Under environmental laws, the first line of liability for payment purposes is private industry — whenever the Michigan Department of Environmental Quality or U.S. Environmental Protection Agency can track the identities of the parties that released the pollution. The MDEQ and EPA have significant powers to force potentially liable parties to do the investigation work, develop alternatives and implement the alternatives to accomplish closures, he said.

“But there are sites where the state does not know where the contamination came from, and can’t identify who is responsible for it,” Schwartz said. “If the contamination presents a human health risk, then the state will have to allocate its own funds to clean that up.”

Part of the problem with the speed of cleanups comes from MDEQ trying to determine liability.

“There are a number of historic sites in the state of Michigan where there aren’t any viable parties left — either they went bankrupt or dissolved or are just gone,” Schwartz said. “The state has a long list of those types of sites. They have to prioritize them to decide which ones present the greatest risk to human health and attack those first, then work their way down the list.”

While environmental cleanup projects today try to keep negotiations in the administrative arena, litigation was almost a certainty for the PFAS problem in northern Kent County. Footwear maker Wolverine World Wide Inc. is being sued for its role in contaminating area drinking water with PFAS chemicals. In turn, Wolverine filed a federal lawsuit last December against St. Paul, Minn.-based 3M, which for decades supplied the footwear company with Scotchgard, a water and stain repellent containing PFOS and PFOA.

“Wolverine is kind of a special case because the liability they are facing is so significant that they almost have to sue 3M Corp., and they have been sued themselves,” Schwartz said. “They’re not trying to avoid litigation at this point, they are trying to manage it.”

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