chevron-down Created with Sketch Beta.
June 22, 2022 Feature

PFAS: The Impact of Forever Chemicals

Kyle P. Konwinski and Olayinka Ope
dimitris_k/iStock via Getty Images Plus

dimitris_k/iStock via Getty Images Plus

The prevalence of PFAS chemicals poses a significant challenge for regulators and insurance providers, but litigation remains unabated despite the uncertainty.

Per- and polyfluoroalkyl substances (PFAS) are manufactured chemicals used around the globe and have left a lasting impact on our planet. PFAS are used to make products resistant to heat, stains, water, and grease and enjoy widespread use across various industries. They prevent food from sticking to cookware; make clothes, furniture, and carpet stainproof; coat pizza boxes, microwave popcorn bags, eyeglasses, and tennis rackets; and act as a lubricating component for satellite parts, ski wax, and communications cables.1

Beyond their impact on daily life, PFAS chemicals are now impacting many federal and state court dockets. Litigation involving PFAS has ballooned in recent years, suggesting that PFAS-related litigation could be akin to asbestos litigation. This article begins with an introduction to PFAS substances, presents the history of PFAS litigation and current trends in pending litigation, reviews state and agency enforcement actions against PFAS manufacturers and downstream users, provides an overview of the federal and state legislative landscape relating to the regulation of PFAS, and concludes with a review of insurance coverage available for PFAS litigation.

Introduction to PFAS

Invented in the 1940s and entering mainstream production in the 1950s, some estimate over 4,700 chemicals exist in the PFAS family, and the number of PFAS chemicals grows by the year.2 This includes the widely known perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), GenX, and thousands more. Major U.S. manufacturers no longer manufacture PFOA and PFOS, but they are still manufactured internationally and imported into the U.S. in consumer products.3 PFAS do not degrade, which is why they are called “forever chemicals.” To date, the chemical has been found in 2,337 locations in 49 states.4

PFAS’s durability and widespread presence are precisely what make PFAS so dangerous, as many people are exposed to PFAS throughout their daily lives or sometimes by contamination. According to the Environmental Protection Agency (EPA) and the Agency for Toxic Substances and Disease Registry (ATSDR), there is evidence that exposure to PFAS may lead to adverse health effects.5 However, due to the variation of study participants, types of PFAS, and forms of exposure, the ATSDR has recognized that further research is still required to understand the gamut of these effects, even though current studies indicate that PFAS can cause various concerning maladies.6

PFAS chemicals have been tied to high cholesterol, low infant birth weights, immune system deficiencies, cancer, and thyroid hormone disruption.7 The EPA has found that “PFOA and PFOS can cause reproductive and developmental, liver and kidney, and immunological effects in laboratory animals.”8 The National Institute of Environmental Health Sciences (NIEHS) linked PFAS to altered metabolism, altered fertility rates, reduced fetal growth, and immune system suppression.9 There is growing concern that prenatal exposure to PFAS may lead to lower birth weight and that PFAS may affect developing newborns, as PFAS can be transferred while breastfeeding.10 The ATSDR states, “[b]ased on current science, the benefits of breastfeeding appear to outweigh the risks for infants exposed to PFAS in breast milk.”11 The prevalence of PFAS in some foods and the environment makes complete elimination of exposure unlikely.

Aqueous film-forming foam (AFFF)—an active ingredient in firefighting foam—is another primary source of PFAS contamination.12 PFAS in AFFF does not break down after its use to put out a fire. Instead, it remains in the environment and does not degrade. AFFF is used as a commercial surfactant solution in various ways, including fire suppression, fire training, and flammable vapor suppression at military installation and civilian facilities, airports, petroleum refineries, and chemical manufacturing plants and storage facilities.13 According to the EPA, the biggest industrial users of AFFF are in the U.S. military, petrochemical, and aviation industries.14 The Federal Aviation Administration requires commercial airports to train with, calibrate equipment with, and use the best-performing AFFF fire suppression systems.15

While firefighters are exposed to PFAS during their occupation, individuals may be affected by PFAS through their environment. For example, people may be exposed to PFAS by unknowingly consuming contaminated food. However, the Food and Drug Administration (FDA) has released new studies suggesting that PFAS contamination in the environment where food is grown does not necessarily mean the food itself will contain detectable PFAS.16 Also, food can be contaminated if it is packaged in a product that contains PFAS or processed by equipment that uses PFAS.17 People who work at PFAS production facilities are particularly vulnerable due to their proximity to PFAS products and exposure to contaminated air.18 AFFF products can also reach drinking water sources, groundwater, and surface water, polluting the environment and those using these water sources.19

The History of PFAS Litigation and Current Trends in Emerging Lawsuits

The origins of PFAS litigation. Since PFAS’s invention, primary manufacturers of PFAS such as 3M Corporation and E.I. du Pont de Nemours and Company (DuPont), as well as numerous downstream users, have faced citizen and state lawsuits due to the health and environmental effects of contamination. The birth of PFAS litigation is often considered a 1999 case against DuPont, the inventor of polytetrafluoro-ethylene (PTFE) (trade name Teflon), a compound in the PFAS chemical family.20 Arguably this case, which later served as inspiration for the acclaimed motion picture Dark Waters, launched the dawn of PFAS litigation, forcing manufacturers and downstream users to confront legal liability based on exposure to PFAS.

DuPont, a chemical company, used PFOA to coat its signature brand plastic material, Teflon, and dumped the PFOA sludge by-product into streams along with the water source nearest its plants.21 By 2003, the company had dumped 2.5 million pounds of PFOA into its Washington Works plant in Parkersburg, West Virginia.22 The Washington Works facility, now owned by Chemours Company, DuPont’s spin-off company, is considered the most notorious PFAS contamination site globally.23 DuPont continued to discharge PFOA into the Ohio River for decades, purportedly killing farm animals and poisoning the surrounding waters.

In 1999, a cattle farmer discovered that his cows were dying after drinking stream water nearby DuPont’s plant.24 He eventually hired Robert Bilott to pursue a case against DuPont: Tennant v. E.I. du Pont de Nemours & Co.25 After a year of investigation, Bilott uncovered DuPont studies showing that DuPont believed the presence of a chemical compound known as PFOA in the Ohio River and nearby drinking water was killing animal life.26 Moreover, the studies showed that by DuPont’s estimates, the PFOA levels in the streams were 100 times greater than the safe drinking limits.27 After this discovery, DuPont discretely settled the farmer’s claims for an unknown amount, but the wave of litigation had only just begun.28

Bilott’s investigation into the effects of PFAS quickly led to another disturbing discovery: DuPont’s internal study results linking PFOA to human liver defects and endocrine disorders.29 Bilott’s realization led to the launch of the first wave of class action lawsuits against DuPont.30 Finally, in 2001, Bilott filed the first class action on behalf of all the people who lived in the DuPont plant areas and some workers working at DuPont’s water plants.31

The first class action: Leach. The first class action filed against DuPont was by a group of Parkersburg, West Virginia, plaintiffs. The lawsuit eventually exploded into an 80,000-member class action suit titled Leach v. E.I. du Pont de Nemours & Co.32 On February 28, 2005, DuPont settled this case for $70 million, of which $20 million would be used for “community health and education projects,”33 with prospects of paying up to $343 million for medical monitoring for the class members.34 The settlement also required DuPont to install state-of-the-art water treatment technology for the six water district and private water wells to clean PFAS in the water supply to the lowest possible levels.35

Accordingly, the settlement precluded the Leach plaintiffs from filing individual personal injury claims relating to PFOA exposure until a science panel conducted epidemiological studies on whether there was a probable link between PFOA exposure and certain human diseases.36 The court ordered DuPont to pay to fund a health study, and thus the C8 Science Panel was established.37

The panel’s study roused interest in the scientific community to assess the long-term effects of exposure to PFAS. The panel, which consisted of three independent epidemiologists, was charged with researching any hypothetical link between PFAS and any human diseases.38 The panel conducted two kinds of studies: first, an analysis of DuPont workers at one of DuPont’s plants; and second, a survey of individuals in the community exposed to PFAS.39 As part of the settlement, an independent company was also engaged to conduct a year-long survey called the C8 Health Project to gather information through interviews and questionnaires and collect blood samples from thousands of citizens living near DuPont’s West Virginia plant.40 In 2012, the panel delivered probable link findings. These results linked PFAS to six human diseases: high cholesterol, ulcerative colitis, thyroid disease, pregnancy-induced hypertension, and kidney and testicular cancer.41

The first multidistrict litigation (MDL) and settlement: DuPont C-8. The probable link findings established that the Leach plaintiffs were more likely than not to develop one of the linked diseases. As a result, personal injury lawsuits against DuPont began to pour in. They were eventually consolidated into one action against DuPont in 2013 titled In re E.I. du Pont de Nemours & Co. C-8 Personal Injury Litigation.42 These lawsuits would eventually balloon up to approximately 3,500 personal injury claims.43

In 2017, DuPont agreed to settle more than 3,000 of those cases; a Securities and Exchange Commission Form 8-K recorded that DuPont settled “approximately 3,500 lawsuits” for $670.7 million, with DuPont and Chemours splitting the payment.44

Before DuPont’s settlement of the PFAS MDL, DuPont attempted to litigate these claims. All three bellwether cases tried before a jury resulted in a jury verdict in favor of the plaintiffs. The first case, Bartlett v. E.I. du Pont de Nemours & Co., involved the claims of Carla Marie Bartlett, who suffered from kidney cancer linked to the PFOA exposure.45 The jury awarded the plaintiff $1.1 million on her negligence claims and $500,000 on her negligent infliction of emotional distress claim.46 DuPont appealed this case up to the Sixth Circuit.47 DuPont settled the case prior to a ruling.48 The second case to be tried was Freeman v. E.I. du Pont de Nemours & Co.49 David Freeman suffered the linked disease of testicular cancer. The jury rendered a verdict in favor of Freeman for $5.1 million for his negligence claim.50 The jury also awarded punitive damages of $500,000.51 The trial on the third case, Vigneron v. E.I. du Pont de Nemours & Co., began on November 21, 2016.52 The jury awarded Kenneth Vigneron Sr. $2 million on his negligence claims and $10.5 million in punitive damages.53 By the end of 2016 and heading into 2017, DuPont had settled two of the bellwether cases for undisclosed amounts. The plaintiffs in the last case also withdrew the case from the test pool for unknown reasons.54 Shortly after that, DuPont settled the PFAS MDL.55

Post-settlement cases against DuPont, Chemours, 3M, and others from 2017 to date. The dangers of AFFF have also led to numerous lawsuits against companies involved in the manufacture and sale of AFFF. The Judicial Panel on Multidistrict Litigation in 2018 determined that these AFFF cases involved common questions of law and could be consolidated into one MDL, In re Aqueous Film-Forming Foams (AFFF) Products Liability Litigation, in the District of South Carolina.56 The defendants in this AFFF MDL include 3M, Buckeye Fire Equipment, Chemguard Inc., Tyco Fire Products, National Foam, Angus International Safety Group Ltd., and DowDuPont Inc.57 The common questions of law all relate to allegations that the AFFF defendants manufactured, sold, or used PFAS despite the known risks of illness associated with the chemicals.58 The plaintiffs seek to recover damages for personal injury, medical monitoring, property damages, and/or other economic loss related to exposure.59

In some of the pending cases within this AFFF MDL, the injury alleged relates to severe health problems suffered by plaintiffs in direct contact with AFFF. For example, in Gentile v. 3M Co., the three plaintiffs, Thomas Gentile, Tommy McGarry, and Charles O’Keefe, represent a class of all “current and former firefighters in the State of New York.”60 Two of the three plaintiffs allege that they suffer severe health issues due to their contact with AFFF during their jobs. Gentile, a firefighter with the Brooklyn Fire Department, allegedly developed testicular cancer due to exposure.61 Plaintiff Tommy McGarry suffers from chronic fatigue, heart disease, and high cholesterol, all reportedly related to his use of AFFF as a firefighter for the State of New York.62

While it is unknown whether the AFFF defendants will decide to pursue these more “serious” cases to test out various legal theories and defenses, it is clear that not all the defendants have the same litigation strategy. For example, in January 2021, Tyco, successor in interest to the Ansul Company; Chemguard; and ChemDesign Products Inc., three of the defendants in the AFFF litigation, settled their claims against Joan and Richard Campbell on behalf of a putative class residing in the town of Peshtigo, Wisconsin, for $17.5 million.63 The Campbell complaint had alleged contamination of the property and private well in the town of Peshtigo, Wisconsin, due to PFAS discharge by the AFFF defendants.64

The AFFF MDL lawsuit is still pending on the personal injury and property damages claims of public and private water providers, state entities, individual residents, and firefighters.65 In the last update on the court website dedicated to this MDL, the parties are reportedly engaged in discovery.66

State and Agency Enforcement Actions Related to PFAS and AFFF Discharge

States and regulatory agencies have obtained substantive settlements while others continue to pursue claims against manufacturers and downstream users—companies that use PFAS while making other products. The theories that have emerged tend to fall under common-law intentional tort claims, negligence claims, and claims under various state and federal environmental laws, including the Toxic Substances Control Act (TSCA) and the Resource Conservation and Recovery Act (RCRA).

State lawsuits and settlements. After the first MDL settlement against DuPont, 3M settled an eight-year-old case with the State of Minnesota.67 The State asserted similar common-law claims as the first PFAS MDL for trespass, nuisance, and negligence but also asserted claims under the Minnesota Environmental Response and Liability Act (MERLA) and Minnesota Water Pollution Control Act (MWPCA).68 These causes of action were based on 3M’s purported disposal of wastewater containing perfluorochemicals (PFCs) in Minnesota, causing pollution of Minnesota ground and surface water and injury to the state’s natural resources.69 In less than a year after DuPont’s settlement of the first MDL, 3M settled its claims with the State of Minnesota for $850 million, $720 million of which will be “invested in drinking water and natural resource projects in the Twin Cities east metropolitan region.”70

Other state lawsuits remain pending. 3M, Chemours, DowDuPont, Corteva Inc., Dyneon, and other defendants are all defending claims brought by the State of Michigan.71 The complaint seeks to hold the Michigan defendants liable based partly on their alleged conduct in designing, manufacturing, and/or selling PFAS, which allegedly have resulted in damages to the natural resources and property of the state.72 3M successfully removed the case, initially filed in Washtenaw County, Michigan, to the Western District of Michigan in March 2021.73 As of June 2021, the case had been transferred into the AFFF MDL in the District of South Carolina.74

In April 2021, the State of Alaska also filed a lawsuit against 3M, DuPont, and a dozen other companies for their purported releases of PFOA and PFOS into its soil, endangering the environment and the safety and well-being of the state’s citizens.75 The complaint alleges that the Alaska defendants “designed, manufactured, formulated, marketed, distributed, sold, and/or assumed or acquired liabilities for the manufacture and/or sale of [PFAS] that Defendants knew or reasonably should have known would enter the State of Alaska and be released into the environment.”76 Furthermore, the complaint asserts that the Alaska defendants breached a duty to evaluate and test products with PFAS before selling such products.77 Alaska seeks compensatory damages under nine causes of action, including nuisance, negligence, strict liability, and trespass, among other claims.78 The monetary relief will cover the costs of past, present, and future investigation, remediation, and disposal of PFAS, as well as installation of maintenance and monitoring mechanisms to assess impact.79

Likewise, in May 2021, the Commonwealth of Pennsylvania filed an AFFF lawsuit naming 24 companies, including 3M, DuPont, Chemours, Corteva, Chemguard, Tyco, and 49 unnamed defendants, due to contamination that occurred on firefighting facilities in the Upper Darby and Haverford Township areas.80 The complaint seeks to (1) enjoin the Pennsylvania defendants from further violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), (2) require the Pennsylvania defendants to “disgorge all monies acquired or retained as a result of their violations of the UTPCPL,” and (3) recover any and all penalties, fines, restorative relief, and other recoverable damages owed due to the Pennsylvania defendants’ actions.81 A notice on the state court’s website notes that the case has been transferred out of the state’s docket.

Regulatory agency lawsuits and settlements and claims against agencies. Regulatory agencies have also pursued manufacturers and downstream users. For example, in 2005, the EPA settled with DuPont for the most significant civil administrative penalty under any federal environmental statute for violating the TSCA and RCRA.82 The settlement package required DuPont to pay $10.25 million in civil penalties in addition to paying another $6.25 million to cover supplemental environmental projects.83

Downstream user footwear manufacturer Wolverine World Wide Inc., which owns brands such as Hush Puppies, Sperry, and Saucony, has also settled a lawsuit filed by the Michigan Department of Environmental Quality (MDEQ).84 Wolverine purchased Scotchgard containing PFAS from 3M, which was used in the tannery process to process hides and leather in shoes, boots, and other consumer leather goods.85 Wolverine disposed of the tannery waste containing PFAS chemicals at a site known as the “House Street Disposal Site.”86 The complaint alleged that the PFAS eventually migrated into the soil, surface water, and groundwater and into the Rouge River.87 MDEQ sued Wolverine under RCRA and various provisions of the Michigan Natural Resources and Environmental Protection Act.88 In 2020, MDEQ entered into an agreement with Wolverine where the company agreed to pay $69.5 million to increase access to clean drinking water and, under state oversight, address the high levels of PFAS in groundwater.89

In another twist of events, defendants are also turning around to file suit against state agencies. In April 2021, 3M filed a lawsuit against the Michigan Department of Environment, Great Lakes, and Energy (EGLE) after EGLE raised its regulatory standards for toxic chemicals in public water supplies.90 3M claims that EGLE’s rules were made arbitrarily without “consideration of scientific evidence.”91 They also argue that the department failed to evaluate costs of compliance properly.92

3M has also challenged drinking water limits in other states. In New Hampshire, 3M lost that battle after the state legislature passed House Bill 1264, which reinstated new drinking water standards effective in 2022.93 The law was the legislature’s response to 3M’s suit and included a loan fund to cover compliance costs for utilities and municipalities.94 House Bill 1264 also requires insurance coverage for PFAS blood tests.95 In other states like New Jersey, 3M has joined a group of publicly owned utilities, businesses, and associations to challenge the New Jersey Department of Environmental Protection’s restriction of drinking water standards for PFAS chemicals.96

Development of PFAS and AFFF Regulation and Challenges to Regulation

Existing and anticipated federal and state regulation of PFAS and AFFF. To date, there are no federally enforceable maximum contamination levels (MCLs) on PFOA and PFOS under the Safe Drinking Water Act.97 PFAS are also not listed as hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).98

Congress has more recently attempted to address some of these issues in the introduction of the PFAS Action Act of 2021, which is currently pending before the Senate.99 In addition to requiring the EPA to designate PFOA and PFOS as hazardous substances under CERCLA, the act would require the EPA to establish PFAS chemicals as toxic pollutants under the Clean Water Act and set standards to limit discharge from industrial sources into U.S. waters.100 The EPA would also have to issue a national primary drinking water regulation for PFOA and PFOS. Finally, the law proposes incentives to address PFAS, such as grants to help community water systems treat contaminated water.101

In the absence of a federal MCL, states are pursuing initiatives to tighten up their regulation of PFAS in drinking water. For example, in February 2018, EGLE launched the Industrial Pretreatment Program PFAS Initiative. The initiative requires all municipal wastewater treatment plants to meet PFAS screening requirements and submit required monitoring reports.102 In addition, in March 2019, New Jersey released a revised Ground Water Quality Standard to address growing concerns of PFAS contamination.103

Another proposed bill is the PFAS Filthy Fifty Act, requiring remediation of PFAS contamination at military sites nationwide.104 Although the law has not yet passed, the Biden administration has demonstrated a determination to heighten the regulation of PFAS, and it is hoped that Congress will mirror this aggressive stance in legislation.

A patchwork of state regulations and policies also articulates maximum and minimum contaminant levels and/or guidance and notification levels for PFAS. For example, states like California, Michigan, New Hampshire, and New York have adopted lower MCLs for PFOA in drinking water.105 However, over 30 states do not have state legislation regulating PFAS levels; but this is expected to change in the coming years as more information regarding the adverse health effects of PFAS is released.106

Changes are also being made to the laws surrounding AFFF use in firefighting foam. In 2019, Congress passed the National Defense Authorization Act (NDAA), which is intended to phase out the use of AFFF at all military sites by October 1, 2024.107 At the state level, AFFF use is regulated in four general categories: (1) discharge or use requirements, (2) storage or “take back” provisions, (3) notification or reporting requirements, and (4) limitations on personal protective equipment. California’s AFFF law is one of the most robust AFFF restriction laws in the country, providing regulation in all four categories that will ensure the prohibition of AFFF use by January 1, 2032.108 Numerous other states109 have enacted laws in at least one of the four categories.

Safer States, a nongovernmental organization that publishes pending and adopted bills at the state level, has summarized upcoming action in regulating PFAS as such:

  • Eighteen states are considering legislation to restrict PFAS in products, food packaging, textiles, etc. These states include Alaska, Arizona, California, Connecticut, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New York, North Carolina, Oregon, Rhode Island, Texas, Vermont, Virginia, and Washington.
  • Ten states are expected to introduce legislation addressing current PFAS contamination, requiring medical monitoring, introducing strict liability regimes, and expanding the statute of limitations for lawsuits. These states include Connecticut, Illinois, Indiana, Maine, Maryland, Michigan, Minnesota, New Hampshire, Oklahoma, and Vermont.
  • Nineteen states may introduce legislation restricting PFAS in drinking, ground, and surface water. These states include Arizona, California, Colorado, Connecticut, Indiana, Iowa, Maine, Maryland, Michigan, Minnesota, New Hampshire, New Jersey, New York, North Carolina, Rhode Island, South Carolina, Texas, Vermont, and Virginia.
  • A select number of states will consider restrictions of specific chemicals in products of near contact such as receipts, pet products, children’s products, etc. These states are Massachusetts, New Jersey, and New York.110

The EPA’s recent regulation activities. The EPA, tasked with responding to environmental concerns that PFAS endanger human health and the environment, has yet to develop a comprehensive framework to regulate PFAS discharge. But, while criticism abounds for the EPA’s slow progress, the agency has made some advancements in specific areas. The EPA’s efforts fall into two buckets: (1) attempts to leverage existing laws to impose restrictions related to PFAS use, discharge, and contamination; and (2) continued creation, review, and revision of action steps and guidelines regarding PFAS use, discharge, and contamination.

Under the TSCA, enacted in 1976, the EPA has the authority to “require reporting, record-keeping and testing requirements, and restrictions relating to chemical substances.”111 Accordingly, the EPA is proposing reporting and recordkeeping requirements for PFAS under the TSCA.112 The EPA already maintains a TSCA Chemical Substance Inventory that contains all existing substances manufactured, processed, or imported in the United States that do not qualify for an exemption or exclusion under the TSCA.113 The new rule would allow the agency to add 1,364 PFAS to the list.114 Therefore, this new rule under the TSCA would further aid the agency’s efforts to identify, assess, and manage known toxic chemicals.115 The EPA will also work to designate PFOA and PFOS as hazardous substances under CERCLA if the PFAS Action Act of 2021 is enacted.116

In March 2021, the EPA sought comments on an advanced notice of proposed rulemaking to support future rulemaking under the Clean Water Act.117 The potential new rule would relate to “effluent limitations guidelines, pretreatment standards and new source performance standards applicable to the Organic Chemicals, Plastics and Synthetic Fibers (OCPSF) point source category to address discharges from manufacturers of [PFAS].”118

The EPA has also continued to monitor its prior PFAS action plan, even while the new PFAS Action Act is being debated among lawmakers.119 The agency also took two actions in February 2021 intended to develop a national drinking water limit for PFAS. It reinstituted the use of the Fifth Unregulated Contaminant Monitoring Rule to collect new data on PFAS in drinking water, and it reissued a final regulatory determination for PFOA and PFOS under the Safe Drinking Water Act.120

In April 2021, current EPA administrator Michael Regan encouraged the agency’s senior leadership to create a body, the EPA Council on PFAS. The council’s goal is twofold: to realize the 2019 PFAS action plan’s initial goals and to develop strategies to assist states, tribes, and local communities in battling PFAS contamination.121

In July 2021, the agency released a preliminary Toxics Release Inventory database about chemical releases, chemical waste management, and pollution prevention activities in 21,000 federal and industrial facilities.122 This report is the first-ever database on PFAS discharge, as reported by manufacturing and federal facilities, available to the general public for searches.123 The EPA has committed to analyzing this report to examine the facilities and possibly take action if needed.124 The public can also use the report to identify facilities that report their use of PFAS chemicals within a given zip code.125

In September 2021, the agency released Preliminary Effluent Guidelines Program Plan 15, intended to reduce PFAS contamination by regulating wastewater pollution in critical industries.126 The guidelines will result in rulemaking to revise effluent limitations guidelines and create pretreatment standards for organic chemicals, plastics, and synthetic fibers to address PFAS discharges from facilities manufacturing PFAS.127

Contamination Insurance Coverage and Exclusion Policies

In the age of “forever” litigation, the costs of PFAS litigation can quickly add up, especially as it is expected that this area of litigation will balloon if PFAS are designated as hazardous substances or waste. Indeed, these costs are already adding up; sources report that 3M divulged $214 million in PFAS litigation costs alone during the fourth quarter of 2019.128 But, increased sensitivity in the insurance industry to pollution liability makes it less certain that insurance policies will cover these costs. Therefore, business owners need to be made aware of the potential of bearing costs alone.

Defending a claim will likely necessitate a determination as to whether the company’s insurance policy that existed at the time of the incident provided coverage or whether a pollution exclusion applies to prevent coverage. Before the emergence of environmental laws in the 1970s and 1980s, typical commercial general liability policies included a duty to defend the insured and a separate duty to indemnify for third-party claims of bodily or property injuries.129

In the early 1970s, alarmed by the potential of costly payouts under such broad coverage, insurance companies began introducing “pollution exclusions” into policies as they recognized the immense costs associated with a finding of liability.130 These pollution exclusion provisions excluded any pollution-related claim except those that occurred “suddenly” and “accidentally” and were intended to avoid payment for large remediation efforts for legacy pollution.131 Courts were split on the definition of these terms, with some courts defining them broadly to permit coverage for environmental contamination that did not result from a one-time boom event, while others defined the terms narrowly.132 To account for the uncertainty of judicial interpretation, the industry adopted absolute and total pollution exclusions in the 1980s.133

Many policyholders now seek coverage under policies specifically designed to address environmental claims or remediation costs. These policies are tailor-made to cover various types of environmental liability, including regulatory actions and governmental orders, remediation coverage, and third-party claims. However, these environmental pollution policies are not without their complications. For example, since such policies may either be claims-based (that is, coverage is triggered when the claim is alleged against the policyholder) or occurrence-based (that is, coverage is triggered when harm occurs), companies may still face difficulty determining what triggers coverage.

In addition, problems may arise where different kinds of policies have been purchased over time. In any case, policyholders often need to carefully review their policies and comply with all policy provisions from past to present to preserve coverage in the event of a claim. Therefore, it is likely that coverage under insurance policies will continue to be an area ripe for litigation.

Notes

1. Basic Information on PFAS, U.S. Env’t Prot. Agency, https://19january2021snapshot.epa.gov/pfas/basic-information-pfas_.html (last updated Jan. 14, 2021).

2. List of PFAS Added to the TRI by the NDAA, U.S. Env’t Prot. Agency, https://www.epa.gov/toxics-release-inventory-tri-program/list-pfas-added-tri-ndaa (last updated Apr. 19, 2022).

3. Basic Information on PFAS, supra note 1.

4. PFAS Contamination in the U.S., EWG (Oct. 4, 2021), https://www.ewg.org/interactive-maps/pfas_contamination.

5. What Are the Health Effects of PFAS?, Agency for Toxic Substances & Disease Registry, https://www.atsdr.cdc.gov/pfas/health-effects/index.html (last reviewed June 24, 2020).

6. Id.

7. Id.

8. Basic Information on PFAS, supra note 1.

9. Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS), Nat’l Inst. of Env’t Health Scis., https://www.niehs.nih.gov/health/topics/agents/pfc/index.cfm (last reviewed Mar. 7, 2022).

10. How Can I Be Exposed?, Agency for Toxic Substances & Disease Registry, https://www.atsdr.cdc.gov/pfas/health-effects/exposure.html (last reviewed Nov. 19, 2021).

11. Id.

12. Aqueous Film-Forming Foam (AFFF), Interstate Tech. Regul. Council (Oct. 2018), https://pfas-1.itrcweb.org/fact_sheets_page/pfas-fact-sheet-afff-10-3-18.pdf.

13. Id.

14. Risk Management for Per- and Polyfluoroalkyl Substances (PFAS) under TSCA, U.S. Env’t Prot. Agency, https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-management-and-polyfluoroalkyl-substances-pfas (last updated Mar. 24, 2022).

15. 14 C.F.R. § 139.317.

16. Testing Food for PFAS and Assessing Dietary Exposure, U.S. Food & Drug Admin. (Feb. 24, 2022), https://www.fda.gov/food/chemical-contaminants-food/testing-food-pfas-and-assessing-dietary-exposure.

17. Basic Information on PFAS, supra note 1.

18. Id.

19. Aqueous Film-Forming Foam (AFFF), supra note 12.

20. The History of TeflonTM Fluoropolymers, Chemours, https://www.teflon.com/en/news-events/history (last visited May 15, 2022).

21. Sharon Lerner, The Teflon Toxin: DuPont and the Chemistry of Deception, Intercept (Aug. 11, 2015), https://theintercept.com/2015/08/11/dupont-chemistry-deception.

22. Id.

23. Id.

24. Sharon Lerner, The Teflon Toxin: The Case against DuPont, Intercept (Aug. 17, 2015), https://theintercept.com/2015/08/17/teflon-toxin-case-against-dupont.

25. No. 6:99-0488 (S.D. W. Va. 1999).

26. Lerner, supra note 24.

27. Id.

28. Id.

29. Id.

30. Id.

31. Id.

32. No. 01-C-608 (W. Va. Cir. Ct. filed Aug. 31, 2001); Lerner, supra note 24.

33. Order Approving Final Settlement & Notice Plan & for Entry of Final Judgment, Leach, No. 01-C-608 (W. Va. Cir. Ct. Feb. 28, 2005), https://www.hpcbd.com/wp-content/uploads/sites/1601601/2021/01/Final-Order-Approving-Settlement.pdf.

34. Lerner, supra note 24.

35. Order Approving Final Settlement & Notice Plan & for Entry of Final Judgment, supra note 33.

36. Id.

37. Id.

38. C8 Probable Link Reports, C8 Sci. Panel (Oct. 29, 2012), http://www.c8sciencepanel.org/prob_link.html.

39. Id.

40. Id.

41. Id.

42. No. 2:13-md-2433 (S.D. Ohio filed Apr. 9, 2013); DuPont Lawsuits (re PFOA Pollution in USA), Bus. & Hum. Rts. Res. Ctr., https://www.business-humanrights.org/en/latest-news/dupont-lawsuits-re-pfoa-pollution-in-usa (last visited May 15, 2022).

43. Dispositive Motions Order No. 34, DuPont C-8, No. 2:13-md-2433 (S.D. Ohio Nov. 25, 2019), https://www.govinfo.gov/content/pkg/USCOURTS-ohsd-2_13-md-02433/pdf/USCOURTS-ohsd-2_13-md-02433-48.pdf.

44. Order, DuPont C-8, No. 2:13-md-2433 (S.D. Ohio Feb. 14, 2017); E.I. du Pont de Nemours & Co., Current Report (Form 8-K) (Feb. 13, 2017), https://www.documentcloud.org/documents/3460835-DuPont-C8-Settlement-Statement.html.

45. No. 2:13-cv-00170 (S.D. Ohio filed Feb. 26, 2013).

46. Jury Verdict Form for Negligence Claim, Bartlett, No. 2:13-cv-00170 (S.D. Ohio Oct. 7, 2015).

47. Bartlett v. E.I. du Pont de Nemours & Co., No. 16-3310 (6th Cir. filed Mar. 17, 2016).

48. See id.

49. No. 2:13-cv-1103 (S.D. Ohio filed Oct. 22, 2013).

50. Jury Verdict Form for Negligence Claim, Freeman, No. 2:13-cv-1103 (S.D. Ohio July 6, 2016).

51. Judgment in a Civil Case, Freeman, No. 2:13-cv-1103 (S.D. Ohio July 11, 2016).

52. No. 2:13-cv-00136 (S.D. Ohio filed Feb. 12, 2013).

53. Jury Verdict Form for Negligence Claim, Vigneron, No. 2:13-cv-00136 (S.D. Ohio Dec. 21, 2016); Jury Verdict Form, Vigneron, No. 2:13-cv-00136 (S.D. Ohio Dec. 21, 2016).

54. Dispositive Motions Order No. 34, supra note 43.

55. See supra note 44.

56. No. 2:18-mn-02873-RMG (D.S.C. filed Dec. 7, 2018), https://www.scd.uscourts.gov/mdl-2873/index.asp.

57. See, e.g., Complaint, Gentile v. 3M Co., No. 1:20-cv-02344 (E.D.N.Y. May 27, 2020), https://www.firelawblog.com/wp-content/uploads/sites/19/2020/06/2020-05-27-Complaint.pdf.

58. See, e.g., id.

59. AFFF Prods. Liab. Litig., No. 2:18-mn-02873-RMG.

60. Complaint, supra note 57, at 39.

61. Id. at 6–7.

62. Id. at 7–8.

63. Plaintiffs’ Motion & Memorandum of Law in Support of Final Approval of Settlement Agreement & Certification of Settlement Class, AFFF Prods. Liab. Litig., No. 2:18-mn-02873-RMG (D.S.C. May 3, 2021), https://www.firefightingfoamsettlement.com/wp-content/uploads/2021/05/Campbell-v-Tyco-Motion-for-Settlement.pdf.

64. Id.

65. AFFF Prods. Liab. Litig., No. 2:18-mn-02873-RMG.

66. Aqueous Film-Forming Foams (AFFF) Products Liability Litigation MDL No. 2873, U.S. Dist. Ct. Dist. of S.C., https://www.scd.uscourts.gov/mdl-2873/index.asp (last visited May 15, 2022).

67. Minn. 3M PFAS Settlement, https://3msettlement.state.mn.us (last visited May 15, 2022).

68. Complaint, State v. 3M Co., No. 27-CV-10-28862 (Minn. Dist. Ct. Dec. 30, 2010), https://minnesota.publicradio.org/features/2010/12/documents/3m-swanson-lawsuit.pdf.

69. Id.

70. Minn. 3M PFAS Settlement, supra note 67.

71. Complaint, Nessel v. 3M Co., No. 20-00049-NZ (Mich. Cir. Ct. Jan. 14, 2020), https://www.michigan.gov/documents/ag/Complaint_2020-01-14_final_678329_7.pdf.

72. Id.

73. Notice of Removal, Nessel v. 3M Co., No. 1:21-cv-00205 (W.D. Mich. Mar. 1, 2021).

74. Conditional Transfer Order, Nessel, No. 1:21-cv-00205 (W.D. Mich. June 8, 2021).

75. Complaint, State v. 3M Co., No. 4FA-21-01451CI (Alaska Super. Ct. Apr. 6, 2021), https://law.alaska.gov/pdf/press/210407-Complaint.pdf.

76. Id. at 5.

77. Id. at 22.

78. Id. at 23–36.

79. Id. at 36–37.

80. Complaint, Commonwealth v. 3M Co., No. CV-2021-005707 (Pa. Ct. Com. Pl. June 28, 2021), https://delcopublicaccess.co.delaware.pa.us/api/api/v1/publicaccessdocuments/16cbf5cf239a8d2a9bc3abe455a59e5fdb446bcc0a19366d466ffd16242a8ff0/download.

81. Id.

82. E.I. DuPont de Nemours and Company PFOA Settlements, U.S. Env’t Prot. Agency, https://www.epa.gov/enforcement/ei-dupont-de-nemours-and-company-pfoa-settlements (last updated Sept. 27, 2021).

83. Id.

84. See Complaint, Mich. Dep’t of Env’t Quality (MDEQ) v. Wolverine World Wide, Inc., No. 1:18-cv-00039-JTN-SJB (W.D. Mich. Jan. 10, 2018).

85. Id.

86. Id.

87. Id.

88. Id.

89. Consent Decree, MDEQ, No. 1:18-cv-00039-JTN-SJB (W.D. Mich. Feb. 19, 2020), https://www.michigan.gov/pfasresponse/-/media/Project/Websites/egle/Documents/Programs/RRD/Enforcement/fy-2020/Wolverine-World-Wide-Consent-Decree-2020-02-19.pdf.

90. Complaint, 3M Co. v. Mich. Dep’t of Env’t, Great Lakes & Energy, No. 21-000078-MZ (Mich. Ct. Cl. Apr. 21, 2021), https://aboutblaw.com/W3w; Garret Ellison, 3M Sues Michigan, Seeks to Invalidate PFAS Drinking Water Rules, MLive (May 7, 2021), https://www.mlive.com/public-interest/2021/05/3m-sues-michigan-seeks-to-invalidate-pfas-drinking-water-rules.html.

91. Ellison, supra note 90.

92. Id.

93. H.R. 1264, 2020 Leg., Reg. Sess. (N.H. 2020).

94. Id.

95. Id.

96. Coalition Challenges New Jersey PFAS Regulatory Overreach, 3M News Ctr. (Oct. 1, 2020), https://news.3m.com/Coalition-Challenges-New-Jersey-PFAS-Regulatory-Overreach.

97. See Per- and Polyfluoroalkyl Substances (PFAS), U.S. Env’t Prot. Agency, https://www.epa.gov/pfas (last updated Nov. 3, 2021).

98. See id.

99. H.R. 2467, 117th Cong. (2021).

100. Id.

101. Id.

102. Wastewater Treatment Plants / Industrial Pretreatment Program, Mich. PFAS Action Response Team, https://www.michigan.gov/pfasresponse/investigations/wastewater (last visited May 15, 2022).

103. Ground Water Quality Standards (GWQS), N.J. Dep’t of Env’t Prot. Div. of Water Monitoring & Standards, https://www.nj.gov/dep/wms/bears/gwqs.htm (last updated Mar. 9, 2022).

104. H.R. 4241, 117th Cong. (2021).

105. Cal. Health & Safety Code § 116376; Mich. Admin. Code r. 325.10604g; H.R. 1264, 2020 Leg., Reg. Sess. (N.H. 2020); N.Y. Comp. Codes R. & Regs. tit. 10, §§ 5-1.1 et seq.

106. See David Brankin et al., State-by-State Regulation of PFAS Substances in Drinking Water, JD Supra (June 10, 2021), https://www.jdsupra.com/legalnews/state-by-state-regulation-of-pfas-9713957.

107. Pub. L. No. 116-92, 133 Stat. 1198 (2019).

108. Cal. Health & Safety Code §§ 13029, 13061, 13062.

109. Alaska Admin. Code tit. 18, ch. 75; Ariz. Rev. Stat. Ann. § 36-1696; Colo. Rev. Stat. §§ 24-33.5-1234, 25-5-1303, 25-5-1304, 25-5-1305, 25-5-1311; Ga. Code Ann. § 25-2-41; Ill. Pub. Act 102-0290 (2021); Ind. Code § 36-8-10.7-6; Ky. Rev. Stat. Ann. § 227.395; Md. Code Ann., Env’t §§ 6-1603, -1604; Per- and Polyfluoroalkyl Substances (PFAS): PFAS in Fire Fighting Foam, Mass. Exec. Off. of Energy & Env’t Affs., https://www.mass.gov/info-details/per-and-polyfluoroalkyl-substances-pfas#pfas-in-fire-fighting-foam- (last visited May 15, 2022); Mich. Comp. Laws §§ 29.369c, 324.14703, 408.1014r; Minn. Stat. § 325F.072; N.H. Rev. Stat. Ann. §§ 154:8-b, -c; Va. Code Ann. § 9.1-207.1; Wash. Rev. Code §§ 70A.400.010, .020; Wis. Stat. § 299.48.

110. A comprehensive list of proposed and adopted bills in each of the states noted can be found at https://www.saferstates.org/toxic-chemicals/pfas.

111. Summary of the Toxic Substances Control Act, U.S. Env’t Prot. Agency, https://www.epa.gov/laws-regulations/summary-toxic-substances-control-act (last updated Oct. 22, 2021).

112. TSCA Section 8(a)(7) Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances, U.S. Env’t Prot. Agency, https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/tsca-section-8a7-reporting-and-recordkeeping (last updated Feb. 2, 2022).

113. Id.

114. Id.

115. Id.

116. H.R. 2467, 117th Cong. (2021).

117. Clean Water Act Effluent Limitations Guidelines and Standards for the Organic Chemicals, Plastics and Synthetic Fibers Point Source Category, 86 Fed. Reg. 14,560 (Mar. 17, 2021).

118. Id.

119. See U.S. Env’t Prot. Agency, EPA PFAS Action Plan: Program Update (2020), https://www.epa.gov/sites/default/files/2020-01/documents/pfas_action_plan_feb2020.pdf.

120. Press Release, U.S. Env’t Prot. Agency, EPA Takes Action to Address PFAS in Drinking Water (Feb. 22, 2021), https://www.epa.gov/newsreleases/epa-takes-action-address-pfas-drinking-water.

121. Press Release, U.S. Env’t Prot. Agency, EPA Administrator Regan Establishes New Council on PFAS (Apr. 27, 2021), https://www.epa.gov/newsreleases/epa-administrator-regan-establishes-new-council-pfas.

122. Press Release, U.S. Env’t Prot. Agency, EPA Releases Preliminary Data for 2020 Toxics Release Inventory Reporting, Including First Ever Reporting on PFAS (July 29, 2021), https://www.epa.gov/newsreleases/epa-releases-preliminary-data-2020-toxics-release-inventory-reporting-including-first.

123. Id.

124. Id.

125. Id.

126. Press Release, U.S. Env’t Prot. Agency, EPA Announces Plans for New Wastewater Regulations, Including First Limits for PFAS, Updated Limits for Nutrients (Sept. 8, 2021), https://www.epa.gov/newsreleases/epa-announces-plans-new-wastewater-regulations-including-first-limits-pfas-updated.

127. Id.

128. Sylvia Carignan, 3M Hit with $214 Million in PFAS Litigation Costs in Three Months, Bloomberg L. (Jan. 28, 2020), https://news.bloomberglaw.com/environment-and-energy/3m-hit-with-214-million-in-pfas-litigation-costs-in-three-months.

129. Ally Cunningham et al., Companies Should Review Insurance Policies for PFAS Coverage, Law360 (June 2, 2021), https://www.law360.com/articles/1388226/cos-should-review-insurance-policies-for-pfas-coverage.

130. David Dybdahl, The Sudden and Accidental Pollution Coverage Myth, Int’l Risk Mgmt. Inst. (June 2018), https://www.irmi.com/articles/expert-commentary/the-sudden-and-accidental-pollution-coverage-myth.

131. Id.

132. See, e.g., Montrose Chem. Corp. of Cal. v. Admiral Ins. Co., 913 P.2d 878 (Cal. 1995).

133. Dybdahl, supra note 130.

Entity:
Topic:
The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Kyle P. Konwinski

Varnum LLP

Kyle P. Konwinski is a partner in the Grand Rapids, Michigan, office of Varnum LLP. His practice focuses on commercial and environmental litigation. He has extensive experience representing clients in litigation of matters relating to PFAS.

Olayinka Ope

Varnum LLP

Olayinka Ope is an associate in the Grand Rapids, Michigan, office of Varnum LLP. Her practice includes environmental tort litigation, automotive industry litigation, and data privacy litigation.