Contaminants of Emerging Concern: An Environmental Lawyer’s Perspective

The term “contaminants of emerging concern” (CECs) refers to various man-made chemicals widely found in the environment. CECs include thousands of types of compounds and their derivatives, such as pesticides, fertilisers, heavy metals, microplastics, pharmaceutically active compounds, personal care products, and endocrine disruptors like natural and synthetic hormones.

CECs are not necessarily new chemicals. Many such compounds have been found in the environment for decades, but CECs have received increased attention recently as a result of the development of analytical techniques that may measure these compounds in the environment at levels in the parts per trillion (ppt). They include pollutants that have often been present in the environment, but whose presence and significance are only now being further evaluated due to their pervasiveness, their persistence in the environment, and their potential harm to human health and the environment even at these low concentrations.

Attempts to regulate CECs

From a United States legal, regulatory and policy standpoint, many CECs have been referred to by industry and government regulators alike as “unregulated” chemicals. But this seems a misnomer, in that federal and state environmental statutes and regulations, including TSCA, RCRA, CWA, SDWA and CAA arguably require identification, disclosure, monitoring and limitation of many CECs. Some have referred to CECs as historically “under-regulated”, which may be more apt. Regardless, many CECs are not currently included in routine monitoring programmes and may be candidates for further federal and state regulation depending on their (eco)toxicity, potential human health and ecological effects, public perception, and frequency and concentration of occurrence in the environment.

Federal and state governments and regulators have more recently sought to utilise existing statutory and regulatory structures and promulgate new regulations to address CECs. Additionally, a multitude of lawsuits have been filed against manufacturers, users, generators and releasors of CECs by states, municipalities, utilities, landowners, individuals, and downstream users or others alleging damages associated with CEC-contaminated water. These lawsuits have variously been based on statutory and common law causes of action. Producers, generators and releasors of CECs, for their part, have defended themselves vigorously, settled when advantageous to do so, and above all continued strident efforts to lobby federal and state governments.

Costs of contamination

The estimated costs of dealing with widespread CEC contamination – in the United States alone – are staggering. For example, while some cost estimates for drinking water utilities to comply with EPA’s new SDWA drinking water standards for just one group of CECs – per- and polyfluoroalkyl substances (PFAS) – are in excess of USD50 billion, other estimates of total costs are more than ten times that amount. Potential CERCLA regulation of PFAS has been estimated to add another USD100 billion in costs. Largely yet to be determined is whether these extraordinary costs can be borne, and by whom. Extant litigation and ongoing federal and state regulatory efforts under CWA, SDWA and CERCLA continue to play out, with much work for lawyers, scientists, regulators, and others. If past experiences with widespread environmental problems are any indication, regardless of the responsibility of companies that have and continue to manufacture, generate and release CECs into the environment, no matter the outcome of extensive litigation, at least to some degree, the general public seems likely to bear the brunt of remediation and treatment costs – and environmental quality and public health are likely to suffer as a result of historic PFAS and other CEC contamination.

Statutory schemes

Federal regulatory efforts with respect to CECs are being carried out under a number of statutory schemes, including TSCA (PMNs), CWA (NPDES permits), CAA (Title V permits), SDWA (UCMRs and MCLs), and RCRA, among others. States and municipalities are also engaging in various efforts in response to public concerns regarding CECs. However, all involved are challenged in these efforts by the reactive nature of these regulatory efforts and by the extraordinary costs of coming to grips with CEC issues, let alone solving them. Among the questions to be answered now and certainly for the future is whether “we” as a society will learn from the CEC debacle and adopt a more proactive pollution prevention approach or turn away and compound past errors. 

Complicating the regulation of these compounds is that regulators are reliant on the manufacturers generating them to adequately study, and disclose, their presence and characteristics. Historically, this has led to manufacturers deliberately skewing the analyses they undertake and the information they provide to regulators and the public, including by invoking trade secret protections. Some counterbalance is needed. An approach that emphasises the precautionary principle (limiting potential risks when scientific evidence about an environmental or human health hazard is uncertain), cost-benefit analyses, and internalising environmental and economic externalities may be moving in the right direction. Such an approach may also benefit from financial mechanisms to hedge against risk of future harm so that companies who foist risk on the environment and the public may be held to account if that risk comes to fruition – rather than leaving the public with a huge clean-up bill for extensive environmental contamination. However, to date, efforts seem focused on piecemeal, contaminant-by-contaminant continuation of command-and-control under-regulation, which is what gave rise to the CEC circumstances we currently find ourselves in.

Public and private actors caught up in CEC matters, including municipalities and utilities that treat waste water and drinking water, owners and purchasers of real property, and companies that manufacture, use, or otherwise may have released CECs into the environment would be well advised to consult with knowledgeable environmental counsel to navigate the complex and changing regulatory circumstances not only with respect to CECs already found in the environment due to past releases, but also to proactively consider the likely evolution of CEC liabilities, including with respect to future operations.

Under Sackett: All Wetlands Are Equal But Some Wetlands Are More Equal Than Others

The Clean Water Act, 33 USC Section 1251, et seq (CWA) contains robust protections for “waters of the United States”, otherwise known as “WOTUS” or “jurisdictional” waters (CWA Sections 1311(a), 1362). The Act generally prohibits, for instance, the discharge of any unpermitted “pollutant” into jurisdictional waters (CWA Section 1311(a)). “Pollutant” is broadly interpreted. Heat is a pollutant (Section 1362(6)). The CWA likewise prohibits the release of any “dredged or fill materials” into jurisdictional waters without a permit. (See Sections 1311(a) and 1344 (Thou shalt not fill waters of the United States).) The Clean Water Act is, in the Supreme Court’s words, a “potent weapon”: Sackett v EPA, 598 US 651, 660 (2023).

Definition of WOTUS and the scope of wetlands

The meaning of “waters of the United States” is therefore a hugely significant determination that carries massive regulatory, economic and environmental consequences. Facing such a consequential decision in the CWA, Congress punted – granting authority to EPA and the Army Corps of Engineers to define the term instead. Those agencies have certainly tried, with each new definition inevitably challenged in court. The WOTUS definition promulgated in March 2023 by EPA and the Corps was immediately subject to its own (ongoing) challenges. That regulation survived a mere two months before Sackett pulled the rug out from under it. Under that now-defunct version of the rule, waters of the United States were defined, in relevant part, as waters which are:

• susceptible to use in interstate or foreign commerce;
• interstate waters, including impoundments of waters;
• tributaries of the aforementioned, that either significantly affect those waters or are relatively permanent; and
• wetlands adjacent to any of the above, or that “significantly affect the chemical, physical, or biological integrity” thereof.

(See 40 CFR Section 120.2(a) (20 March 2023).) Wetlands, in turn, mean those areas “inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions” (40 CFR Section 120.2(c)).

The implication is that wetlands which “significantly affect” waters of the United States – the “significant nexus” test – were themselves considered waters of the United States subject to the protections of the Clean Water Act. Given that wetlands are inherently low-lying areas close to the water table and generally hydrologically connected to rivers, streams and other water bodies via groundwater, the scope of wetlands within the purview of the Clean Water Act was expansive.

Importantly, that definition for WOTUS was informed by the Supreme Court’s 2006 decision in Rapanos v United States, in which the Court could garner only a plurality led by Justice Scalia. In the scuffle, Justice Kennedy wrote a concurring opinion for himself alone, creating the “significant nexus” test that took root in rule and guidance.

But this is not the Roberts Court of old. In Sackett, the Court narrowed the scope of what could be considered jurisdictional waters back to Justice Scalia’s plurality: waters of the United States now encompass “only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes”: Sackett, 598 US at 671. And jurisdictional waters extend “to only those wetlands that are as a practical matter indistinguishable from waters of the United States” (ibid at 678). To be jurisdictional, wetlands must now be (i) adjacent to those ordinary-parlance streams, oceans, rivers, and lakes; and (ii) have a “continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins” (ibid). In short, wetlands are no longer considered jurisdictional merely by means of a nexus to waters; they must be practically indistinguishable from waters. Wetlands are still wetlands, but Sackett represents a sea change as to which wetlands are considered jurisdictional.

Revised regulatory definition

In response to Sackett, EPA and the Corps again revised the regulatory definition for WOTUS, by amending the March 2023 rule (notwithstanding the ongoing challenges to that version of the rule). The rule as it now stands ditches the significant nexus path to jurisdictional waters for both tributaries and wetlands, and specifies that “adjacent” tributaries and wetlands are those that have a “continuous surface connection” (see 40 CFR Section 120.2(a)). Wetlands only count if they are connected.

Among others things that remain to be seen is whether “continuous surface connection” will approximate Sackett’s requirement that wetlands must be “as a practical matter indistinguishable from waters of the United States”, making it difficult to determine where one ends and the other begins. It seems likely, given the relatively small tweak to the pre-existing rule, that EPA and the Corps will not cede jurisdiction so quickly. Regulators may still seek to characterise a hundred-acre contiguous wetland, with some – any – adjacency to a jurisdictional water as jurisdictional in its entirety.

Though Sackett may indicate otherwise, it appears that EPA and the Corps could, in regulation and in practice, dilute the opinion’s effect by not limiting the jurisdictional scope of wetlands to those swathes adjacent to and indistinguishable from streams, oceans, rivers and lakes – but rather extending jurisdiction to the entire contiguous area of wetlands adjacent to not just those geographic features, but also to their relatively permanent tributaries. Continuous surface connection will be the likely jurisdictional hook. It seems, according to the latest rule, that a clean break between wetlands may be needed to make a non-jurisdictional determination. More challenges are left to work their way through the regulatory implementation, administrative tribunals and courts, and the rule for jurisdictional waters will, as it has since the enactment of the Clean Water Act, continue to ebb and flow.

North Carolina Farm Act

Another piece of the puzzle, for North Carolina’s purposes, is the North Carolina Farm Act of 2023 (NC Session Law 2023-63), enacted over Governor Cooper’s veto, which explicitly deals with the scope of wetlands within the state. The backdrop for the wetlands provision is that North Carolina’s Department of Environmental Quality (DEQ) has two regulatory bases to oversee wetlands: its delegated authority to regulate waters of the United States under the Clean Water Act, and its own authority to regulate waters of the State of North Carolina (more or less defined as any water within state borders, at any location, in any form). The Farm Act restricts DEQ’s authority to regulate wetlands, by “clarifying” that wetlands classified as waters of the state “are restricted to waters of the United States” as defined by the Corps and EPA. Accordingly, jurisdictional wetlands are the only wetlands subject to DEQ’s regulatory authority.

Potential issues lying ahead

Developers on a state and national level are assessing parcels anew, re-evaluating whether areas previously known to be regulatorily problematic due to the presence of jurisdictional wetlands are now unregulated and ripe for development. For its part, the Corps – which is responsible for assessing the scope of jurisdictional wetlands and issuing jurisdictional determinations – appears to have resisted wholesale implementation of Sackett. It is not hard to foresee clashes growing between the Corps on the one hand, implementing a perhaps pared-down brand of Sackett, and developers on the other, who have read the Supreme Court’s recent opinion and find it hard to square with the Corps’ current approach. The assistance of knowledgeable consultants and counsel will be paramount in navigating these questions.