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August 28, 2017 Articles

Emerging Trends in Perfluorinated Chemical Regulation and Litigation

Inaction by the federal government and some state regulators should not be misinterpreted to mean that the current federal guideline is sufficiently protective.

By Allan Kanner – August 28, 2017

Under the 1996 Safe Drinking Water Act (SDWA), 42 U.S.C. §§ 300f et seq., the U.S. Environmental Protection Agency (EPA) is required periodically to generate a new list of no more than 30 unregulated contaminants to be monitored by public water systems. 40 C.F.R. § 141.40. Each iteration of this list is known as the Unregulated Contaminant Monitoring Regulation (UCMR). UCMR 3 was published on May 2, 2012, and required the monitoring of 30 contaminants between 2013 and 2015. The list includes six perfluorinated compounds (PFC), including perfluorooctanoic acid (PFOA) and perfluorooctane sulfanate (PFOS). Currently, the EPA’s minimum reporting requirements for PFOA and PFOS, considered to be indicator chemicals for the presence of other PFCs, are 0.04 µg/L and 0.02 µg/L, respectively, and the combined lifetime exposure limit is 70 ppt.

Two developments of note have occurred in conjunction with increased awareness of the dangers of PFCs: state guidelines and personal injury litigation. States have begun to take their own close looks at PFCs and their possible effects on the states’ drinking water supplies, implementing guidelines more stringent than the EPA regulations. At the same time, personal injury class actions have revolved around manufacturers’ failure to properly dispose of PFOA and similar PFCs.

Expansion of U.S. State Monitoring Rules
In light of UCMR 3 and independent state testing following claims of water contamination from manufacturing plant emissions, states are moving toward regulation of PFCs. A few states in particular have begun the process of adopting stricter standards than those suggested by the EPA as an appropriate exposure level. (These suggested exposure levels are not binding regulations but rather technical guidelines for state and local governments to use in determining how best to handle these persistent chemicals.) This handful of regulations and guidelines represents the shift that states are making as the prevalence and danger of PFCs are brought to light in an increasing number of water supply systems around the country.

Vermont’s guidelines call for a health advisory level of 20 ppt. Vermont, where a Saint-Gobain fabric manufacturing plant is suspected of being the cause of significant PFOA contamination, decided to adopt a more stringent health advisory level of 20 ppt, much lower than the EPA’s UCMR monitoring levels and the lifetime health advisory. The state notes that in recommending this low exposure level, it considered the entire population, including children’s exposure, over the long term.

Despite the new exposure level’s basis in science, Saint-Gobain has filed multiple suits against the state, two of which were unsuccessful, arguing that this level is not based on generally accepted scientific standards, failing to recognize that there likely will never be 100 percent consensus on any given effect of any given chemical.

Nonetheless, Vermont is moving forward with its crackdown on PFCs and is in the process of signing into law a bill that extends liability for contamination of potable water supplies to emitters of PFOA. Those that release PFOA into the air, groundwater, surface water, or soil will be liable for the costs of extending municipal water lines to the affected areas. 10 Vt. Stat. Ann. § 6615e. The legislation passed in the Vermont Senate in February 2017 and passed in the House May 4, 2017.

New York classified chemicals as hazardous substances. New York has also taken steps toward regulation of PFOA: Governor Cuomo issued emergency regulations to classify PFOA as a hazardous substance in 2016 after severe PFOA contamination was found in Hoosick Falls, another location of a Saint-Gobain facility. As of March 3, 2017, PFOA and PFOS are considered permanent hazardous substances under New York law. 6 N.Y. Comp. Codes R. & Regs. pt. 597.3.

New Jersey has proposed a 14 ppt guidance level. New Jersey is currently proposing the lowest guidance level yet of 14 ppt, which is significantly lower than its current 40 ppt guidance level and the EPA’s 70 ppt. The N.J. Department of Environmental Protection (DEP) issued a report in 2014 finding that PFOA and other PFCs were detected in two-thirds of the water systems sampled in 2009 and 2010. Given this information as well as the multiple exposure routes, New Jersey’s Drinking Water Quality Institute recommended the significantly lower health advisory guidance in 2016.

Minnesota recognizes long-term effects of chemicals. In May of 2017, Minnesota reevaluated its Drinking Water Guidance Value originally issued in 2009. It adopted a much lower guidance value of 27 ppt for PFOS and 35 ppt for PFOA. These revised guidance values are based on short-term periods, weeks to months, but with the understanding that PFCs remain in the human body for years and will bioaccumulate with each successive exposure.

California published a notice of intent addressing water supply contamination. California is also taking action to curb PFC contamination in its water supply. On September 16, 2016, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) published a notice of intent to list PFOA and PFOS as known to the state to cause reproductive toxicity under California’s Safe Drinking Water and Toxic Enforcement Act of 1986. The list of chemicals is known as the Proposition 65 List, which requires listing a chemical when an authoritative body formally identifies the chemical as causing reproductive toxicity and the evidence considered to reach that conclusion meets the sufficiency criteria laid out by the regulation.

Recent Litigation
Recent personal injury class actions have revolved around the failure of manufacturers and government entities to properly dispose of PFOA and similar PFCs. A few large lawsuits against prominent chemical companies have made national headlines. These suits are unique because, though dealing with water contamination, they are not claims under the Clean Water Act. Because PFCs, as unrecognized and unregulated chemicals, are essentially legally no different than water, the attorneys brought medical-monitoring claims, as well as claims for negligence, trespass, and an amalgam of traditional torts.

DuPoint litigation ends with a settlement focusing on research. Leach v. E. I. Du Pont de Nemours & Co. & Lubeck Public Service District, Case No. 01-C-608 (Wood Cnty. W. Va. Cir. Ct.), was filed for medical monitoring on behalf of all those that had consumed water laced with the chemical. A settlement agreement for the Leach class action was approved on February 28, 2005, which required that a scientific panel be assembled to conduct research into diseases that may be linked to PFOA exposure. Diseases found to have a “probable link” to PFOA exposure would be preserved for personal injury claims against DuPont.

Importantly, the results of this study were legally applied only to those that qualified to be class members, namely, people living within the six identified water districts that had consumed water with PFOA levels of .05 ppb or higher for at least one year, which is a deviation from the toxic tort standard for the general population. Such specifications were required by the settlement agreement in order to expedite causation issues in future litigation. With these particular parameters, DuPont agreed not to contest general causation; each plaintiff in turn would need to prove specific causation. Six diseases were found to have such a probable link—high cholesterol, kidney cancer, testicular cancer, thyroid disease, pregnancy-induced hypertension/preeclampsia, and ulcerative colitis—and those diagnosed brought successful claims for negligence, negligent infliction of emotional distress, and punitive damages.

The agreement was carefully worded to require the scientists to show a “probable link,” not definitive proof that PFOA could cause a given disease. The reports issued by the panel are careful to explain that “[a] ‘probable link’ in this setting is defined in the Settlement Agreement to mean that given the available scientific evidence, it is more likely than not that among Class Members a connection exists between PFOA exposure and a particular human disease.” Despite this, the science panel has been cited by articles and studies around the world. For example, a recent study in the Netherlands highlighted the studies in its analysis of “high-exposure communities.” Herremans Oomen Ag, Significance of PFOA Blood Test Results for People Living Nearby DuPont/Chemours (Nov. 2016).

Coinciding with the 2005 settlement agreement, the EPA entered into a Consent Agreement with DuPont for its violation of the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601 et seq., and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq., in which DuPont paid $16.5 million. TSCA section 2607(e) provides that “any person who manufactures, processes, or distributes in commerce a chemical substance or mixture and who obtains information which reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment shall immediately inform the Administrator.” DuPont conducted extensive research on PFOA exposure, both for animals and humans, including blood tests in 1981 that showed transplacental movement of the chemical, but did not share this information with the EPA when it became available or following a 1997 request for known toxicological information about PFOA. As such, DuPont violated the TSCA and its RCRA permit, which required sharing information that may warrant a modification. Pursuing other companies with similar permits in this manner may encourage safer handling of PFCs as well as put pressure on regulators to address PFC contamination with sufficient regulations to protect human health.

DuPont litigation settles for multimillion-dollar award. DuPont again found itself in court with the first personal injury multidistrict litigation (MDL), In re E.I. Du Pont de Nemours & Co. C-8 Personal Injury Litigation, MDL No. 2433, for PFC contamination. The case was recently settled for $671 million.

The suit dealt with decades’ worth of PFOA contamination in southeastern Ohio and northern West Virginia that originated from DuPont’s Washington Works plant in Parkersburg, West Virginia. The lawsuit revealed that DuPont had known since as early as the 1960s that PFOA was likely dangerous to human health. No. 2:13-CV-170, 2016 WL 659112, at *8 (S.D. Ohio Feb. 17, 2016). In 1991, DuPont scientists determined that the internal safety limit for PFOA concentration in drinking water should be set at 1 ppb. Leach v. E.I. Du Pont de Nemours & Co., 2002 WL 1270121, at *4 (W. Va. Cir. Ct. Apr. 10, 2002). Despite this, DuPont failed to inform the public when the company found three times that level of contamination in a local water district.

St.-Gobain finds itself the subject of two states’ lawsuits. Saint-Gobain is in the midst of legal battles in both New York and Vermont following PFOA contamination from its Bennington, Vermont, fabric plant and its Hoosick Falls, New York, plastics plant. Both were the impetus for each state to adopt stricter PFC guidelines and regulations.

In Vermont, the plant contaminated the local groundwater aquifer, soil, and private drinking wells, which led to a class action bringing negligence, nuisance, trespass, battery, and strict liability claims and demanding that the company pay for remedial measures to prevent further and eliminate current contamination in the water supplies. Sullivan v. Saint-Gobain Performance Plastics Corp., 2016 WL 7487723 (D. Vt. 2016). The class also brought a claim for a violation of RCRA, which defines actors that may be responsible for hazardous waste, including the “owner operator of a . . . facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B). The manufacturing operations at the plant released significant amounts of PFOA into the atmosphere, which resulted in environmental contamination around the facility, including contamination of the groundwater and local drinking water supplies. Plaintiff’s Class Action Complaint, Sullivan v. Saint-Gobain Performance Plastics Corp., 2016 WL 7487723.

The residents of Hoosick Falls brought a class action against Saint-Gobain, as well as Honeywell International, for medical monitoring and diminution in property values due to the stigma created by PFOA contamination in their community drinking water supplies. Baker v. Saint-Gobain Performance Plastics Corp., 2016 WL 40228974 (N.D.N.Y. 2016). In 2016, the EPA designated the plants as Superfund sites, ultimately impacting homeowners’ ability to obtain a mortgage. This is common when homes are not equipped with potable water supplies. Without the ability to obtain a mortgage, property values in the village have been affected and remain the primary claim in the class action.

The U.S. military fought a litigation war stemming from PFC contamination. Recently, the U.S. military, following decades of using PFC-laced firefighting foam in training and in emergency response, has come under fire from nearby communities that have found large swaths of PFC contamination in their water supplies.

A notable group of cases out of Pennsylvania concerns contamination around the Willow Grove Naval Base. Plaintiffs in these actions have brought claims against the U.S. Department of the Navy as well as four manufacturers of the foam and PFOA. In Giovanni v. U.S. Department of the Navy, 2:16-cv-04873 (2016), the Giovanni family has raised claims for medical monitoring for themselves, as well as for health assessments for themselves and other individuals exposed to the chemical. In the suits against the manufacturers, the most prominent being Bates v. 3M Co., 2:16-cv-04961-PBT (E.D. Pa. 2016), plaintiffs brought claims for negligence, nuisance, and medical monitoring, as well as two products liability claims, failure to warn, and design defect.

Given the number of military bases throughout the country, and more significantly the world, lawsuits similar to these will likely only increase in number.

Future Issues
Following the UCMR 3 testing of public water supplies completed between 2013 and 2015, systems across the country were found to have reportable levels of PFC contamination. Significantly, the reporting levels required by the EPA are much higher than those adopted by some states; and, as such, there is a high probability that many more systems are contaminated at levels lower than EPA’s advisory levels but at levels that are likely deleterious to human health.

Because the Trump administration has emphasized deregulation, it is unlikely that the EPA will be moving toward a binding regulation on PFCs in the near future. Inaction by the federal government and some state regulators, however, should not be misinterpreted to mean that the current federal guideline is sufficiently protective. Without a federal regulation, it will be up to the states to independently monitor and regulate PFC contamination.

If regulators continue to ignore the persistence of PFCs, lawsuits will only continue to proliferate as contamination becomes increasingly more prevalent throughout the world. PFCs are found in everything from Scotchgard to Teflon to firefighting foam used on U.S. military bases around the country. With so many exposure routes, PFCs have the potential to reach the litigation levels seen with polychlorinated biphenyl (PCB) and methyl tertiary butyl ether (MTBE) contamination lawsuits. Many of the same plaintiffs will likely come forward, including the states, private and public water service providers, and local communities.

Given their bioaccumulative and persistent nature, PFCs and their contamination problems are not going to dissipate any time soon.

Allan Kanner is named partner of Kanner & Whiteley, LLC in New Orleans, Louisiana.

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