Another PFAS Clean Water Act Citizen Suit And There May Be Thousands More Of These Fish In The Barrel

Lara Beaven of Inside PFAS Policy is reporting on another PFAS citizen suit under the Federal Clean Water Act. This one, by Tennessee Riverkeeper, alleges that PFAS are being discharged from a former Lebanon, Tennessee landfill and that those discharges are not authorized by the Federal Clean Water Act NPDES permit that the City of Lebanon already has relating to discharges from the former landfill to a Water of the United States.

Tennessee Riverkeeper seeks penalties, its costs of suing the City of Lebanon, and an injunction.

This most recent citizen suit filed respecting unpermitted releases of PFAS most certainly won't be the last. As I wrote about an earlier lawsuit in Georgia last spring, most NPDES permits still don't even require the measurement of PFAS in a discharge, let alone set limits on the amount of PFAS that can be in the discharged water. That means all one needs to prove to prevail in a PFAS Clean Water Act Citizen Suit is that water containing a detectable concentration of PFAS (and they are detectable at parts per quadrillion), that isn't specifically authorized in a NPDES permit, has been discharged to a Water of the United States.

Whether or not the discharge of other pollutants is authorized by a NPDES permit is irrelevant.

Because PFAS have only captured the attention of Federal and State regulators over the past few years, I expect there are hundreds, if not thousands, of such unpermitted discharges of these "forever chemicals" (which are also "pretty much everywhere chemicals") in the United States and that's not even counting discharges of PFAS to groundwater that a court might find to be the "functional equivalent" of a discharge to a Water of the United States following the Supreme Court's decision in Maui v. Hawaii Wildlife Fund and subsequent EPA guidance.

That means we can expect to see many more of these citizen suits which isn't the same thing as saying that we're anywhere close to figuring out how we're going to actually eliminate these hundreds, if not thousands, of PFAS discharges or how to pay the astonomical costs of doing so.

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