American Journal of Trial Advocacy

Photo Credit: Josh Moon, High chemical levels in water near Decatur landfill concern environmental group, ADEM, Alabama Political Reporter, June 25, 2020, https://www.alreporter.com/2020/06/25/high-levels-of-chemicals-in-groundwater-at-decatur-landfill-concerns-environmental-group-adem/.

Authored by: Jaylee R. Schroeder

For the first time in 20 years, the U.S. Environmental Protection Agency (EPA) established enforceable limits on the levels of six different perfluoroalkyl and polyfluoroalkyl substances (PFAS) that can be in drinking water under the final National Primary Drinking Water Regulation (NPDWR) by 2029.[1] PFAS, also known as forever chemicals, are a group of almost 15,000 synthetic chemicals that are in hundreds of daily household items, foods, water sources, and soil.[2] They are resistant to disintegration, remain in the environment for an unknown amount of time, and accumulate within the body.[3] PFAS in very low concentrations can cause harm to “the reproductive system, [have] developmental effects, increase risk of certain cancers, reduce immune response . . . increase cholesterol levels” and have been linked to numerous other health conditions.[4] Fifty percent of the nation’s rivers and streams contain PFAS, which serves an estimated 200 million Americans, as well as 20% of private wells being contaminated.[5] They are estimated to be detectable in the bloodstream of 98% of Americans.[6] This amount of inadvertent absorption is concerning as no amount of PFAS are considered to be safe for consumption.[7] There is still uncertainty surrounding exactly how dangerous PFAS are and how best to protect human health and the environment from them.  

The EPA has the authority to set national standards for the amount of contaminants that can found in drinking water under the Safe Drinking Water Act (SDWA) and can require the monitoring of public water systems for the levels of specified PFAS.[8] They also can investigate and require clean-up measures or reimbursement for clean-up measures from responsible parties that have released hazardous substances in the air, soil, water, and groundwater under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).[9] Currently under the new NPDWR, public water systems have until 2027 to complete initial monitoring and will then be subject to ongoing compliance monitoring, must provide the public with the levels of PFAS in their drinking water, and have until 2029 to implement solutions, to take action to reduce elevated PFAS levels and must notify the public of any violations.[10] In contrast, waste materials containing PFAS alone do not have any regulatory requirements by the EPA regarding their treatment, destruction, and disposal as they are not considered to be hazardous.[11] The EPA has designated two PFAS, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous under CERCLA, which will require reporting of any known releases of those chemicals.[12] The EPA has also proposed listing more PFAS as hazardous under the Resource Conservation and Recovery Act (RCRA).[13]

Alabama administers all of the major federal environmental laws, including the Clean Water and Safe Drinking Water acts.[14] The Alabama Department of Environmental Management (ADEM) was created with the passage of the Alabama Environmental Management Act in 1982 to create a comprehensive program that oversees all of the state’s environmental management.[15] Currently, ADEM follows the EPA’s NPDWR and the Fifth and Sixth Unregulated Contaminant Monitoring Rule to monitor new unregulated PFAS contaminants and identifies future potential ones to monitor.[16] ADEM is also the state agency responsible for enforcing regulations of the disposal of solid and hazardous waste under the federal Solid Waste Disposal Act.[17] The Alabama Hazardous Waste Management and Minimization Act of 1978 was enacted to “encourage the minimization of hazardous waste generation, transportation, and land disposal.[18] ADEM requires a facility that wishes to discharge pollutants into the state’s water sources to obtain a National Pollutant Discharge Elimination System (NPDES) permit.[19] Businesses are also required to get a State Indirect Discharge (SID) permit if they discharge large amounts of wastewater into treatment facilities.[20] Alabama Code § 22-22A-5(18)(c) gives ADEM the authority to impose civil penalties on landfills for violations of hazardous waste regulations that can be no more than $25,000.00 for each separate violation and a total amount of no more than $250,000.00.[21] ADEM cannot fine or make responsible parties clean-up PFAS pollution that has been released into ground water or other bodies of water because the EPA has not set any enforceable limits.[22] While PFAS are mainly being regulated for the potential health hazards of people through clean drinking water, that still leads to questions about the long-term effects of PFAS contamination in other under-regulated water sources.

As of now, there are three main technologies, that are used to destroy or contain PFAS waste: thermal treatment, landfills, and underground injection.[23] While incineration is the most common way that PFAS are destroyed, it still disperses PFAS into the air and there is uncertainty surrounding the amount of pollution it generates based on limited research.[24] Since destroying PFAS is limited, PFAS-containing waste are also sent for disposal in hazardous waste landfills. When a landfill is selected as the disposal option and PFAS levels are elevated, the EPA recommends using hazardous waste landfills because they have leachate emission protections, but PFAS emissions have been found to be more elevated than previously known.[25] Underground injection wells are used to protect underground sources of drinking water and have the lowest potential for environmental releases since they are deep below the surface. Problems with this option include a limited number of wells accepting PFAS, well location issues, and transportation possibly not being feasible.[26] Every type of destroying or disposal technique has some type of environmental impact and involves a balancing act of what is the best course of action to cause the least amount of damage possible.

Landfills are a major source of PFAS pollution, stemming both from products being flushed down household drains and from other states transporting PFA-laden waste to be disposed of in Alabama’s landfills instead of their own. [27] While landfills are strategically built to be long-lasting and are considered to be the safest option for disposal, they always have a risk of contamination from failing over time.[28] One such example is the Emelle commercial hazardous waste landfill, which has recently received over 38,500 gallons of firefighting foam that contained PFAS from a Wisconsin clean-up project.[29] While there are no current reports of contamination of drinking water, the landfill has a history of environmental violations, including cancer-causing PCBs leaching into wells, drainage ditches, and swamps located outside the landfill.[30] Another example is in Tallassee, Alabama, where a recent lawsuit has been filed against Stone’s Throw Landfill for knowingly releasing cancer-causing PFAS leachate into the local water supply by failing to make repairs that would’ve prevented the contamination.[31] Leachate is a black, foul-smelling liquid that is “formed when water seeps through landfill material and takes on the chemical characteristics of the waste through which is passes,” and is toxic to human health because it generally contains PFAS and other pollutants.[32] Stone’s Throw Landfill sits at a particularly troublesome location at the top of a ridge, leading to polluted water draining from the landfill.[33]

Decatur, Alabama has had a persistent PFAS problem that has led to numerous lawsuits. In 2019, 3M had to pay the West Morgan East Lawrence Water Authority a $35 million settlement for drinking water contamination of PFAS that “enter[ed] the Tennessee River from a landfill, groundwater, and runoff.”[34] In 2020, an abandoned landfill was found to have high levels of PFAS and PFOS in water flowing from the landfill.[35] ADEM responded that they are working with the EPA to develop a plan for the contamination but notes that it cannot impose fines or force remediation efforts by the responsible parties or issue contamination warnings to the public because the EPA has not set “acceptable PFAS/PFOS limits for ground water or bodies of water.”[36] Another major settlement against 3M was reached in 2023 for $98.4 million for more PFAS contamination into the Tennessee River from a chemical plant.[37] The settlement amounts went to water agencies and environmental groups in order to fund resolutions like new filtration systems or to fund cleanup costs, but leaves residents having to pursue legal recourse individually for their resulting health problems.[38] Large settlements from these environmental violation suits mainly benefit large corporations involved with the communities still suffering from the long-term effects of the pollution.         

The problem of PFAS contamination in Alabama is far from over, with at least four water systems still having reported concentrations of PFAS up to 40 parts per trillion.[39] Landfills in Alabama are still having continuous pollution problems, with most “solutions” by ADEM consisting of repeated small fines.[40] Since PFAS chemicals must be removed by specialized means, it is an expensive task to build and maintain removal equipment, which could take years for the agencies to acquire enough funding.[41] While the EPA has taken a progressive step towards PFAS regulation with the NPDWR and listing two PFAS chemicals as hazardous, there still needs to be more research concerning how dangerous PFAS are to human health in order to expand the regulations as needed.

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[1] Per- and Polyfluoroalkyl Substances (PFAS), EPA (Feb. 19, 2025),  https://www.epa.gov/sdwa/and-polyfluoroalkyl-substances-pfas; Bennet Goldstein, Wisconsin PFAS cleanup shifts toxic burden to Alabama’s Black Belt, Wisconsin Watch (Oct. 25, 2023), https://pbswisconsin.org/news-item/wisconsin-pfas-cleanup-shifts-toxic-burden-to-alabamas-black-belt/, (“It warned against consuming more than 0.004 parts per trillion (ppt) and 0.02 ppt of the two compounds . . . equat[ing] to about 4 drops and 20 drops of water in 1,000 Olympic-sized swimming pools.”)

[2]Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS), Nat’l Inst. of Env’t Health Sciences (Mar. 6, 2025), https://www.niehs.nih.gov/health/topics/agents/pfc#:~:text=Per%2D%20and%20polyfluoroalkyl%20substances%20(PFAS,degrade%20easily%20in%20the%20environment.

[3] Id.

[4] Id.

[5] Morgan Coulson, The Omnipresence of PFAS – and What We Can Do About Them, John Hopkins Bloomberg School of Public Health (Mar. 28, 2024), https://publichealth.jhu.edu/2024/what-to-know-about-pfas.

[6] Nat’l Inst. of Env’t Health Sciences, supra note 2; Coulson, supra note 5.

[7] Wisconsin Watch, What should I do about PFAS in my water?, PBS Wisconsin (Nov. 28, 2022), https://pbswisconsin.org/news-item/what-should-i-do-about-pfas-in-my-water/.

[8] EPA, supra note 1; Safe Drinking Water Act, EPA (Jan. 23, 2025), https://www.epa.gov/sdwa/overview-safe-drinking-water-act#:~:text=The%20Safe%20Drinking%20Water%20Act%20(SDWA)%20was%20originally%20passed%20by,(pdf)%20(368.27%20KB).

[9] Elizabeth Haskins & Noelle E. Wooten, PFOA and PFOS Are Now Hazardous Substances Under CERCLA, Baker Donelson (July 8, 2024), https://www.bakerdonelson.com/pfoa-and-pfos-are-now-hazardous-substances-under-cercla.

[10] Per- and Polyfluoroalkyl Substances (PFAS) in Drinking Water, ADEM (last visited Mar. 27, 2025), https://web-prd.adem.alabama.gov/water/and-polyfluoroalkyl-substances-pfas-drinking-water#:~:text=In%20accordance%20with%20ADEM%20Admin,documents%20for%20your%20water%20system.

[11] Elizabeth Haskins & Noelle E. Wooten, Is “Forever” Really Forever? EPA’s New Guidance on PFAS Destruction and Disposal, Baker Donelson (July 16, 2024), https://www.bakerdonelson.com/Is-Forever-Really-Forever-EPAs-New-Guidance-on-PFAS-Destruction-and-Disposal#:~:text=EPA’s%20updated%20Interim%20Guidance%20reviews,underground%20sources%20of%20drinking%20water.

[12] Haskins & Wooten, supra note 11.

[13] Haskins & Wooten, supra note 11.

[14] ADEM Overview, ADEM (last visited Mar. 27, 2025), https://web-prd.adem.alabama.gov/adem-overview.

[15] Id.

[16] Id.

[17] Chemical Waste Management, Inc., Consent Order No. 23-XXX-CHW, https://adem.alabama.gov/newsEvents/notices/sep23/pdfs/9chem.pdf.

[18] Alabama Code § 22-30-2(2023) – Legislative Findings, JUSTIA (last visited Mar. 27, 2025), https://law.justia.com/codes/alabama/title-22/title-1/chapter-30/section-22-30-2/#:~:text=It%20is%20also%20the%20intent%20of%20the,consistency%20with%20the%20Federal%20Hazardous%20Waste%20Management.

[19] NPDES Permits, Alabama Department of Environmental Management (last visited Mar. 27, 2025), https://adem.alabama.gov/programs/water/permitting.cnt.

[20] State Indirect Discharge (SID) Permit Information, Alabama Department of Environmental Management (last visited Mar. 27, 2025), https://adem.alabama.gov/programs/water/sidinfo.cnt.

[21] Ala. Code § 22-22A-5(18)(c).

[22] Josh Moon, High chemical levels in water near Decatur landfill concern environmental group, ADEM, Alabama Political Reporter (June 25, 2020), https://www.alreporter.com/2020/06/25/high-levels-of-chemicals-in-groundwater-at-decatur-landfill-concerns-environmental-group-adem/.

[23] Haskins & Wooten, supra note 11.

[24] Interim Guidance on the Destruction and Disposal of Perfluoroalkyl and Polyfluoroalkyl Substances and Materials Containing Perfluoroalkyl and Polyfluoroalkyl Substances – Version 2 (2024), Interim Guidance For Public Comment at 12, (Apr. 8, 2024), https://www.epa.gov/system/files/documents/2024-04/2024-interim-guidance-on-pfas-destruction-and-disposal.pdf; Coulson, supra note 6; Goldstein, supra note 1.

[25] Haskins & Wooten, supra note 11.

[26] Id.

[27] Coulson, supra note 5; Goldstein, supra note 1.

[28] Sarah Whites-Koditschek, Alabama Has Become the Nation’s Toxic Waste Disposal, Governing (Oct. 20, 2023), https://www.governing.com/infrastructure/alabama-has-become-the-nations-toxic-waste-disposal.

[29] Goldstein, supra note 1.

[30] Goldstein, supra note 1; Curt Davidson, Emelle, Alabama: Home of the Nation’s Largest Hazardous Waste Landfill, University of Michigan (Mar. 20, 2017), http://umich.edu/~snre492/Jones/emelle.htm.

[31] Press Release, Beasley Allen Files Lawsuit Against Tallassee Landfill Leaking Toxic Pollutants Into Local Water Supplies, Beasley Allen Law Firm (Feb. 14, 2023), https://www.beasleyallen.com/article/beasley-allen-files-lawsuit-against-tallassee-landfill-leaking-toxic-pollutants-into-local-water-supplies/.

[32] Id.

[33] Transcript of Env’t Just. Episode Eight, VT. L. SCH. ENV’T LAW CTR., 4-5, 16 (Feb. 2020), https://www.vermontlaw.edu/sites/default/files/2020-02/HHEep8_transcript-environmental-justice.pdf.

[34] 3M, Alabama communities reach $98M pollution settlement, AP News (Oct. 19, 2021), https://apnews.com/article/business-environment-and-nature-alabama-lawsuits-environment-a4dda1162d018987d691064b02873557.

[35] Josh Moon, High chemical levels in water near Decatur landfill concern environmental group, ADEM, Alabama Political Reporter (June 25, 2020), https://www.alreporter.com/2020/06/25/high-levels-of-chemicals-in-groundwater-at-decatur-landfill-concerns-environmental-group-adem/.

[36] Id.

[37] AP News, supra note 34.

[38] Alabama Water Contamination Lawsuits, McCutcheon & Hammer Attorneys At Law (Jan. 8, 2024), https://mhatty.com/alabama-water-contamination-claims/#:~:text=One%20major%20settlement%20was%20reached,from%20the%20affected%20water%20supply.

[39] Dennis Pillion, Alabama utilities struggle to meet new limits on forever chemicals in drinking water, AL.com (Apr. 17, 2024), https://www.al.com/news/2024/04/alabama-utilities-struggle-to-meet-new-limits-on-forever-chemicals-in-drinking-water.html#:~:text=%E2%80%9CSince%202020%2C%20ADEM%20has%20required,to%20help%20them%20remediate%20problems.%E2%80%9D.

[40] Whites-Koditschek, supra note 28.

[41] Pillion, supra note 39.