On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (“Act”), a sweeping $1.2 trillion piece of legislation that advances some of President Biden’s campaign promises into action. One component of the legislation is $10 billion set aside specifically for PFAS drinking water issues. While the money is significantly more than any funding ever set aside by the U.S. government to address PFAS issues, the funds will likely represent only a fraction of the money needed to address PFAS issues nationwide. Nevertheless, companies with current or legacy PFAS pollution concerns would be well advised to pay attention to the details of the Act, as well as some of the future economic effects of the $10 billion kick start seeding funding, as the longer-term effects could result in more litigation against PFAS polluters.

The Act, PFAS, and Environmental Justice

The Act recently signed into law establishes three new grant programs that provide funding for various PFAS issues of concern. First, $5 billion was set aside through the Safe Drinking Water Act to assist rural and disadvantaged communities with purchasing “point-of-entry or point-of-use filters and filtration systems . . . for the removal of contaminants of concern [from drinking water].” Second, $4 billion was set aside through the Drinking Water State Revolving Fund to assist water utilities with their efforts to remove PFAS from drinking water sources. Third, $1 billion is set aside to address PFAS in wastewater discharge concerns, more specifically to help treatment facilities in rural and tribal communities manage PFAS wastewater issues.

What is clear from the language in the Act is the government’s interest in ensuring that the $10 billion in PFAS funding is used in traditionally or currently disadvantaged communities in order to ensure that the funds are not simply allocated to more affluent communities. This falls in line with President Biden and the EPA’s strong push for policies that reflect environmental justice principles – the notion that environmental benefits or remediation efforts should be shared across all communities in the country.

PFAS Drinking Water Fund Implications To Businesses

On the surface, the Act’s allocation of money to scratch the surface to remedy some of the PFAS contamination issues that the United States faces seems like a step that will reduce the financial burdens of PFAS cleanup efforts on companies. Such a notion is but an illusion, as the longer-term effects of the Act’s steps to address PFAS issues may in fact lead to additional litigation against companies.

The vast majority of the $10 billion in funding under the Act will likely be used to purchase filtration systems, either for large facilities like wastewater treatment plants or for residential settings so that citizens in particularly impacted communities can have PFAS-free drinking water. Once these systems are installed, however, there are long-term costs associated with the systems that will surely come to light for the purchasers only after the federal funding is gone. Costs such as maintenance by properly trained mechanics for the filtration units, replacement parts, or potentially replacing an aged filtration unit entirely are bit a few examples. Further, with the limits on available funding, some communities will naturally be left needing to fund their own filtration or remediation efforts to address PFAS concerns. If demand surges as a result, but supply cannot keep pace, prices will increase for the PFAS filtration technology, perhaps potentially frustrating efforts by communities to obtain the full scale of technology needed to address their PFAS issues. Communities may look to companies in the area that they believe are responsible for the PFAS pollution to obtain the costs of purchasing the necessary technology, which will require lawsuits.

Eventually, in the longer term, the laws of supply and demand will likely balance out as companies increase production and competition enters the market. However, this balancing in the laws of economics may not result in stability in the legal world. As filtration technology becomes more readily available and prices decrease somewhat, this increase in availability to market may mean that increasing numbers of communities will be highly interested in purchasing full-scale filtration systems, but most certainly not by way of simply using taxpayer money. Rather, over time as the number of PFAS lawsuits increase, so too, will communities look to the potential PFAS polluters through lawsuits to pay for the implementation of PFAS filtration technology.

Conclusion

Companies may view the Act and the fund set aside as a bit of a relief valve, albeit temporary, in that attention could be shifted away from obtaining funds for PFAS cleanup through time-consuming and costly lawsuits. While this is true, it may be a short-term reality, as the longer-term impacts of the federal funding for PFAS technology efforts may in fact result in many more lawsuits against alleged PFAS polluters than many realize.