March 22, 2021 Articles

Water Wars: Litigation over PFAS Chemicals Expected to Increase as New EPA Administrator Takes the Helm

EPA administrator Michael Regan has vowed to prioritize PFAS regulation and enforcement. Consumers, municipalities, and water utilities see blood in the water to seek redress for PFAS contamination against a host of industries that made and used fluorinated chemicals.

By David J. Marmins and Morgan E. M. Harrison

On March 10, 2021, a bipartisan Senate confirmed Michael Regan, veteran environmental regulator and Secretary of the North Carolina Department of Environmental Quality, to direct the Environmental Protection Agency (EPA). Throughout his campaign, President Biden signaled that his administration would tackle per- and polyfluoroalkyl substances (PFAS) head-on with unprecedented regulatory and enforcement action. Secretary Regan appears uniquely positioned to lead that effort, having previously sued chemical manufacturer Chemours on behalf of North Carolina over its Fayetteville plant, which Secretary Regan alleged was discharging PFAS into the Cape Fear River. That lawsuit culminated in a consent order whereby Chemours agreed to undertake numerous remediation measures, including, among other things, installing expensive equipment and infrastructure to filter and treat the groundwater and surface waters surrounding the plant.

As EPA Administrator, Regan will aggressively implement President Biden’s plan to prioritize the regulation of thousands of chemicals in the PFAS family. The Biden administration began this process even before Secretary Regan’s confirmation. On February 22, 2021, the EPA announced two actions under the Safe Drinking Water Act (SDWA) to address PFAS. First, the agency reissued the final regulatory determination to implement a National Primary Drinking Water Regulation (NPDWR) for PFOS and PFOA, two of the most common PFAS chemicals. This determination also states that the agency is considering the regulation of additional PFAS chemicals.

Second, the EPA authorized the study of an additional 29 PFAS chemicals. The next steps are likely to be designating PFAS chemicals as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, setting enforceable limits under the Safe Drinking Water Act, prioritizing substitutes through procurement, and accelerating toxicity studies and research on PFAS. As the EPA prepares to ramp up its regulatory and enforcement activity under the new administration, businesses can expect a commensurate increase in PFAS litigation in the coming years.

PFAS: The “Forever Chemicals”

PFAS are synthetic chemicals that resist soil, water, heat, oil, and grease. Originally developed by chemists at DuPont and 3M in the late 1930s and early 1940s, the first notable PFAS chemicals were perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), though most consumers will know them by their most common brand names Teflon and Scotchgard, respectively. Today, there are several thousand known PFAS chemicals, many of which are used in manufacturing commercial products, including water-resistant clothing, shoes, stain-resistant carpets, food packaging, household cleaners, nonstick cookware, and Aqueous Film Forming Foam (AFFF) used for firefighting and military operations.

PFAS have been dubbed “forever chemicals” because they are extremely stable and persist in the environment unless they are actively remediated. PFAS can also travel through the environment and bioaccumulate in wildlife, groundwater, and surface waters. Research from the Environmental Working Group and Northeastern University has found that, as of January 2021, over 2,300 locations in 49 states are known to have PFAS contamination.

Reports from scientists at the Center for Disease Control and Prevention indicate that there has been “widespread exposure” to certain PFAS in the U.S. population, likely through PFAS-contaminated water or food. While early studies suggest that high levels of exposure can lead to adverse health outcomes, including increased cholesterol levels, low infant birth weights, increased risk of cancer (for PFOA), and thyroid disruption (for PFOS), the human health effects of PFAS remain unknown and are the subject of ongoing research.

Currently there are no federally enforceable limits or monitoring requirements on PFAS in drinking water, groundwater, or soils. A growing number of states, including California, Colorado, Connecticut, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, North Carolina, and Vermont, have adopted or proposed limits for PFAS in drinking water. Although the EPA issued a health advisory for PFOA and PFOS in 2016, that advisory is—by its own terms—non-enforceable. And, even the most recent EPA actions do not designate PFAS chemicals as hazardous substances or establish enforceable limits under the SDWA.

PFAS Litigation to Date

Notwithstanding this relative dearth of federal regulation, the past five years have seen a marked increase in lawsuits across the country against companies that have either manufactured PFAS chemicals or, more recently, companies that have used them in the production of commercial goods. Carpet manufacturers, AFFF suppliers, and even national footwear brands have all been embroiled in PFAS litigation, and the pool of potential defendants appears to be widening. In addition to companies that make or use PFAS, local water utilities have recently been sued for allegedly failing to adequately filter PFAS out of their customers’ drinking water.

The majority of these lawsuits have been brought by individuals, usually seeking damages from the PFAS manufacturers for personal injuries or property damages sustained as a result of their exposure to negligently discharged PFAS. Perhaps the best known of these was the class action case of Richard Rowe, et al. v. E.I. DuPont de Nemours and Co., which was subsequently made into the movie Dark Waters, starring Mark Ruffalo, Anne Hathaway, and Tim Robbins, and directed by Todd Haynes.

However, businesses that use PFAS in their manufacturing operations have also faced individual claims. One such business, Tyco Fire Products LP—a company that makes firefighting foam (AFFF)—recently settled a multidistrict litigation in South Carolina, agreeing to pay $17.5 million (together with two other defendants, including a chemical manufacturer) to the plaintiff homeowners and cancer patients.

Proving that a particular discharge of PFAS led to a specific personal injury is difficult and requires expensive, expert-intensive ligation often impossible for individuals to pursue. A growing number of complainants, however, have moved beyond claims for personal and property damages and started seeking the costs associated with treating PFAS in drinking water sources. States and municipalities, in particular, have brought suits against manufacturers and users of PFAS, often naming an industry full of companies as defendants in a single lawsuit. These governmental entities have sought damages associated with installing filtration systems or demanded injunctive relief that would require the defendant(s) to pay for adequate filtration systems (along with undertaking costly remediation measures). On February 19, 2021, a federal judge approved a $69.5 million settlement in a lawsuit brought by the State of Michigan and local governments in 2018 against the shoe manufacturer Wolverine World Wide. The plaintiffs sought to make Wolverine pay for public water extensions in areas affected by PFAS contamination. Like many businesses that use leather goods, Wolverine used 3M manufactured Scotchgard starting in the 1950s. Wolverine subsequently pursued 3M to cover its liability, and 3M agreed to fund $55 million of the settlement.

Class action lawsuits have even been initiated by citizen “ratepayers” who purportedly incurred surcharges to cover the costs of filtering PFAS from their drinking water. These cases eliminate the need to show direct causation between personal injuries and PFAS in order to recover. And more stringent PFAS rulemaking and regulations provide these plaintiffs with enhanced arguments to pass on the costly filtration costs to the manufacturers and users of PFAS.

PFAS plaintiffs have asserted a wide variety of claims—from common law claims for negligence, nuisance, and trespass, to violations of the Clean Water Act and various local statutes and regulations. Of course, many lawsuits—regardless of whether they sound in personal injury—also feature claims for wantonness and punitive damages. Potential defenses depend on the nature of the claims and the role that the defendant played, if any, in the manufacture, use, or discharge of the PFAS chemicals. However, common defenses include the following:

  • Lack of legal duty to the plaintiff (particularly if the defendant does not manufacture PFAS);
  • Lack of proximate cause (for instance, where a PFAS supplier has been sued in a location far from its manufacturing facility);
  • Lack of foreseeability (especially where the plaintiff is seeking to recover for alleged discharges that occurred long before the potential dangers of PFAS were known);
  • No violation of state or federal limitations on PFAS in industrial discharges, because no enforceable standards exist;
  • The economic loss rule, which bars a plaintiff from recovering in tort for purely economic losses;
  • The Public Services Doctrine, which prohibits local governments from recovering the costs of carrying out public services from the tortfeasor who caused the need for such services; and
  • The “permit shield” defense, which automatically protects a permit holder who has acted in compliance with its permit from liability under the Clean Water Act.

As PFAS lawsuits inch through motion practice and discovery, however, the viability of these and other defenses will be tested. One thing that is clear is that PFAS litigation is in its infancy. Armed with new regulations and the backing of a new administration, municipalities and classes of individual citizens are coming after any business that has manufactured PFAS or used PFAS to make their products stain-resistant or water-resistant.

Conclusion

During his Senate confirmation hearing, Secretary Regan vowed that he would make PFAS a “top” priority during his tenure at the EPA. With more federal scrutiny of PFAS on the horizon, businesses can expect that the wave of recent PFAS litigation will not only continue but will likely increase across the country.

David J. Marmins is a partner and Morgan E. M. Harrison is an associate with Arnall Golden Gregory LLP in Atlanta, Georgia.


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