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    December 08, 2023 Feature

    Be Aware of the “Forever Chemicals”

    By Daniel F. Gourash

    Per- and polyfluoroalkyl substances (PFAS) are a large group of manufactured chemicals, not naturally found in the environment, that have been used in products around the world since the 1940s. The class of PFAS chemicals numbers over 5,000 different compounds, two of which are perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS). The use of PFAS chemicals has been widespread, and they are found in many products such as Teflon, Scotchgard, waterproofing compounds, stain-proofing compounds, paper and cloth coating, waxes, and aqueous film-forming foam used for fighting fires.

    Not only is the presence of PFAS in common everyday products ubiquitous, but the significant strength of the carbon-fluorine bond means that the compounds do not biodegrade and remain intact in the environment and in human bodies, causing buildup over time. Thus, they have come to be known as the “forever chemicals.”

    PFAS chemicals also move readily through soil, surface water, and groundwater and have contaminated water supplies across the country. Studies have shown persistent PFAS buildup in persons who have been exposed to PFAS by either consumption or other environmental exposures. There is debate regarding the toxicity of PFAS in the human body that is currently developing. In 2012, the so-called C-8 Panel identified a probable link to kidney and testicular cancer, high cholesterol, ulcerative colitis, thyroid disease, and pregnancy-induced hypertension. However, in 2018, a Michigan PFAS Science Panel found that “causality . . . has not yet been established in current scientific literature” and the toxicity debate continues not only in medical and regulatory bodies but also in expansive litigation across the country.

    In June 2022, the U.S. Environmental Protection Agency (EPA) issued interim updated drinking water health advisories for PFOA and PFOS that replaced those issued in 2016. The new health advisory reduced the lifetime exposure level from 70 parts per trillion (ppt) to 4 ppt. These health advisories remain in effect until the EPA establishes a National Primary Drinking Water Regulation. Health advisories reflect the EPA’s assessment of health risks of a contaminant based on the best available science and provide advice and information on actions that water systems may take to address contamination for PFAS chemicals. However, they are not regulatory and are not legally enforceable.

    Although there are no current legally enforceable federal maximum contaminant levels (MCLs) for PFAS in drinking water, in March 2023, the EPA announced a Proposed PFAS National Drinking Water Regulation MCL of 4 ppt for both PFOA and PFOS. The comment period for the proposed regulation expired on June 1, 2023, and the EPA anticipates promulgating a final regulation in December 2023. If adopted, the regulation will go into effect in 2026 and would require public water systems to monitor for these PFAS, notify the public of the levels of these PFAS, and reduce the levels of these PFAS in drinking water if they exceed the proposed standards.

    In the absence of a federal regulatory MCL, some states have established drinking water regulations or guidance values for some PFAS, leading the way in monitoring for and limiting PFAS. For example, in August 2020, Michigan’s then newly enacted PFAS drinking water standards for seven types of PFAS—with levels of 8 ppt for PFOA and 16 ppt for PFOS—became effective. The Michigan PFAS Action Response Team (MPART), a multi-agency entity, coordinates state resources to address PFAS contamination. Together with the Michigan Department of Environment, Great Lakes, and Energy (EGLE), it commenced site investigations across Michigan identifying hundreds of PFAS-contaminated sites and areas of interest for potential PFAS contamination and developed a map identifying specific source sites for PFAS contamination. However, that regulatory scheme recently was cast into doubt.

    In November 2022, in a lawsuit filed by the 3M Company, the Michigan Court of Claims struck down the Michigan PFAS regulations relating to the drinking water enforceable limits. It held that the state, when creating the standards, did not consider adequately the costs for businesses to comply with the related groundwater cleanup standards that automatically resulted from the new drinking water standards. Recently, in August 2023, the Michigan Court of Appeals agreed with the trial court that EGLE had violated administrative procedures by failing to adequately prepare a regulatory impact statement that includes an estimate of the cost of groundwater cleanup compliance by businesses and other groups. Although these rulings strike down the Michigan drinking water standards, the trial court stayed its decision until final judgment is entered, and the state can still seek further appeal, leaving the regulations in place until final resolution.

    Meanwhile, litigation regarding PFAS contamination of water systems continues to be filed across the country. Currently pending in the U.S. District Court for the District of South Carolina is a multidistrict litigation proceeding (MDL) with over 5,000 individual cases pending falling into three distinct categories: (1) personal injury plaintiffs claiming injury from exposure to PFAS, (2) actions filed by individual states for natural resource and other damages, and (3) public water supply plaintiffs seeking drinking water testing and remediation costs. As the first bellwether case was coming for trial, two prominent defendants—the 3M Company and DuPont de Nemours, Inc. (and other DuPont companies)—announced tentative settlements, with 3M to pay $10.3 billion to $12.5 billion and DuPont to pay $1.185 billion. Both of those settlements are tentative and require court approval, which has not yet been granted.

    These tentative settlements, however, illustrate the magnitude of the anticipated costs associated with PFAS contamination. New lawsuits are being filed across the country every day for the harm alleged already to have been suffered by PFAS contamination, and the EPA and state regulatory agencies continue to adopt new regulations seeking to prevent harm from future contamination.

    These PFAS-related issues will not be going away anytime soon. Several insurance coverage actions have already been filed across the country as the companies that manufactured PFAS chemicals and other manufacturers who used them in their products seek coverage for the huge sums being paid to settle claims. Other PFAS-related actions will likely be filed, such as bankruptcies for those being held liable for injuries arising from PFAS contamination.

    In this environment, state and federal courts will be called on to address a variety of issues arising from these forever chemicals, and judges must be aware of what they are, the debate regarding the harms they are alleged to have caused, and the environmental enforcement regulations currently being developed to address them. Congress also may be called on to enact new laws to address the PFAS issues that courts may be called on to interpret. So, “Beware of the forever chemicals” coming soon to a courtroom near you.

    Daniel F. Gourash

    Seeley Savidge Ebert & Gourash Co., LPA

    Daniel F. Gourash is the immediate past chair of the Judicial Division Lawyers Conference and the director of the Insurance Coverage and Complex Litigation Practice Groups of Seeley Savidge Ebert & Gourash Co., LPA, in Cleveland, Ohio.

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