Shooting fish in a barrel: Why I'm surprised the courts haven't already been flooded with PFAS Clean Water Act Citizen Suits.

Bloomberg Environment reports that a Georgia NGO has sued a textile manufacturer and the town in which the manufacturer is located over unpermitted discharges of the "forever chemicals" known collectively as PFAS into the Chattooga River.

We should expect such lawsuits to flood our federal courts. I'm surprised the flood hasn't already come. Why? The answer has to do with the fact that EPA and the States still haven't made the regulatory program changes that would be consistent with their relatively recent grave concerns about PFAS.

The Federal Clean Water Act and EPA's National Pollutant Discharge Elimination System (NPDES) regulations implementing the Act prohibit the discharge of "pollutants" other than those specifically authorized by a NPDES permit.  The NPDES permit is issued by the States other than in Massachusetts, New Hampshire and Idaho but that's a different story. 

Because EPA's PFAS road map is less than two years old, most NPDES permits don't even require the measurement of PFAS in wastewater, let alone set limits on the amount of PFAS that can be in the wastewater.

A clumsy metaphor: across our United States countless PFAS "trees" have been falling into our Waters of the United States "forests" for decades but no one has "seen" them.

A well-placed concern over the astronomical liability they now face for continuing to pass along to the environment PFAS from their customers is why just last week the American Water Works Association, the National Association of Clean Water Agencies, the National Rural Water Association, and the Water Environment Federation were lobbying Congress to pass the "Water Systems PFAS Liability Protection Act" to "ensure that polluters — and not innocent water system ratepayers — get the [PFAS] bill."

But the legislation isn't law yet and in the meantime the Clean Water Act authorizes any "citizen" to sue anyone who discharges any "pollutant" into any Water of the United States without a permit. The Act also allows such citizens to recover their attorneys' fees. Because defending oneself against such allegations costs hundreds of thousands of dollars, if not more, most citizen suits settle. Similar suits have spread from coast to coast over "excess" nitrogen in effluent from wastewater treatment facilities.

If "excess nitrogen" is a "pollutant" as defined in the Clean Water Act then it is hard to imagine that PFAS don't also fall within that definition which includes "chemical wastes".

And that means all one needs to prevail in a PFAS Clean Water Act Citizen Suit is wastewater (even treated wastewater) containing a detectable concentration of PFAS (and they are detectable at parts per quadrillion) that isn't specified in a NPDES permit. The cliché about shooting fish in a barrel comes to mind.

Of course no number of such citizen suits is going to really change how much PFAS we are putting in our environment but that's another story.