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December 20, 2023 Feature

A Survey of Trends in PFAS Regulation and Litigation

Cory Novak, John Parker, and Oliver Twaddell
Increasing regulations and litigation should drive companies to review their PFAS-related insurance policies, products, and operations.

Increasing regulations and litigation should drive companies to review their PFAS-related insurance policies, products, and operations.

Getty Images/iStock/Getty Images Plus/Alexmia

Per- and polyfluoroalkyl substances (PFAS), also known as “forever chemicals,” are a class of manufactured biologically and environmentally persistent compounds that have been used in a wide variety of industries since the 1940s. PFAS have been historically used and are still used in consumer products and industrial applications, including nonstick cookware, food packaging, cosmetic products, building and construction materials, firefighting products, textiles, and plastics. PFAS can also be released into the environment during manufacturing and processing as well as during industrial and commercial use. Exposure in people can occur by consuming PFAS-contaminated water or food or using products that contain PFAS. According to the U.S. Environmental Protection Agency (EPA), a growing body of scientific evidence shows that exposure at certain levels to specific PFAS can adversely impact human health.

There is no universally accepted definition of PFAS. However, it is generally accepted that PFAS are organic compounds containing carbon chains of different lengths and having all or part of the carbon atoms fluorinated or linked to fluorine with a hydrophobic fluorinated carbon tail and a hydrophilic nonfluorinated head. PFAS are known to display oleophobic and oleophilic properties, meaning they contain components that repel oil as well as components that attract oil. By replacing carbon-hydrogen bonds in organic compounds with carbon-fluorine bonds, scientists “created one of the strongest compounds in organic chemistry.” PFAS have proven to be resistant to heat, water, oil, and degradation, persisting in the environment for many years.

The number of known PFAS continues to evolve to reflect ongoing study of the compounds as well as the engineering of new compounds. EPA’s growing PFAS Master List of PFAS Substances currently lists over 12,000 substances.

The public’s exposure to PFAS has led to a body of regulation and litigation over the last few decades. In recent years, PFAS-related regulation and litigation have escalated, coinciding with an increase in research and public interest in the ecological, environmental, and human health impacts of PFAS. Federal agencies, particularly EPA, and the U.S. Congress have used their rulemaking and lawmaking authority to bring attention to and regulate the proliferation of PFAS. The majority of regulation and litigation relates to PFAS contamination in drinking water, firefighting products such as aqueous film-forming foam, consumer food products including food packaging, and consumer cosmetic products like hair products and makeup.

This article provides a brief overview of the historic trends in PFAS regulation and litigation as well as an examination of the recent trends in PFAS laws and lawsuits.

Federal Regulation of PFAS and Guidance by EPA

Meaningful regulation of PFAS began in the late 1990s and early 2000s. Prior to that, PFAS were largely unregulated. Although there is currently no federal regulation or federally enforceable standard for PFAS in the environment, EPA has utilized its rulemaking authority under several federal laws—the Toxic Substances Control Act (TSCA), the Safe Drinking Water Act (SDWA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund—to regulate PFAS and provide PFAS-related guidance.

TSCA and significant new use rules. EPA can use its authority under TSCA to require manufacturers to produce hazard and exposure data for the chemicals they produce. Prior to the start of meaningful and PFAS-specific regulation, this process captured some data and safety information related to PFAS. Otherwise, PFAS were largely unregulated until 2002.

In 2002, EPA used its authority under TSCA to regulate certain PFAS by implementing significant new use rules for PFAS, including two specific PFAS chemicals, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). Significant new use rules require persons who intend to manufacture, import, or process a particular chemical substance for an activity that is proposed as a “significant new use” by the rule to notify EPA at least 90 days before commencing that activity. The same year, EPA published a new significant new use rule that required manufacturers to provide EPA with notification about the manufacture or import of 13 PFAS chemicals. Later that same year, EPA expanded the notification requirement to 75 PFAS chemicals.

In 2007, EPA published additional significant new use rules on 183 more PFAS chemicals.

Over the years, EPA’s regulation of PFAS under TSCA became more specific. In 2013, EPA issued a rule requiring companies to report all new uses of certain PFOA-related chemicals contained in carpets and upholstery.

In 2020, EPA proposed a supplemental significant new use rule to ensure that EPA is notified before anyone begins or resumes the import of long-chain PFAS chemical substances as part of surface coatings on articles such as clothing, furniture, and electronics. Also in 2020, EPA strengthened the regulation of PFAS by requiring notice and EPA review of the use of certain long-chain PFAS that were previously phased out of production in the U.S. Further, EPA banned the import of products containing certain long-chain PFAS as surface coatings, textiles, furniture, electronics, and household appliances and carpets unless EPA reviews and approves the use or puts in place the necessary restrictions to address any unreasonable risks.

More recently, in January 2023, EPA proposed a significant new use rule that would “strengthen the regulation of PFAS by preventing anyone from resuming use of inactive PFAS without EPA review.” The “inactive” designation means that a chemical substance has not been manufactured (including imported) or processed in the U.S. since June 21, 2006.

Given the sheer amount of PFAS in existence, both active and inactive, it is highly likely that EPA will continue to regulate PFAS under TSCA and continue to propose new significant new use rules.

PFOA stewardship programs. Beyond asserting its rulemaking authority, EPA has attempted to impact PFAS manufacturing and mitigate potential contamination through voluntary means. In 2006, EPA invited eight major PFAS producers to join a new PFOA Stewardship Program. The participants in the program pledged to reduce 95% of their facilities’ PFOA emissions by 2010, using year 2000 data as the baseline for a company’s emissions and product content information, by ceasing the manufacture and import of long-chain PFAS and then transitioning to alternative chemicals. Through the program, EPA hoped to “commit to working toward the elimination of these chemicals from emissions and products by 2015.”

Each of the companies committed to “work toward a global phaseout of PFOA and related chemicals, both for U.S. operations and for the company’s global business.” According to EPA, “All participating companies state that they met the PFOA Stewardship Program goals.”

To build off the success of the first PFOA Stewardship Program, EPA has tried additional voluntary programs. In 2016, EPA began its PFAS Low-Volume Exemption (LVE) Stewardship Program. LVEs exempt certain chemicals from full premanufacture notice review under section 5 of TSCA, if those chemicals are manufactured at 10,000 kg/year or less. Typically, anyone who intends to manufacture (including import) a new chemical substance for a nonexempt commercial purpose is required to submit a premanufacture notice at least 90 days prior to the manufacture of the chemical. The program was an “outreach effort that resulted in companies withdrawing more than half of the 82 long-chain PFAS LVEs targeted for withdrawal at the time.” The program was renewed in 2021. As a companion to other efforts contained in its Strategic Roadmap, discussed in more detail below, EPA plans to establish a new “voluntary stewardship program challenging industry to reduce overall releases of PFAS into the environment.”

Drinking water health advisories and the SDWA. The SDWA authorizes EPA to issue health advisories for contaminants that are not subject to the National Primary Drinking Water Regulations (NPDWR). PFAS are not subject to the NPDWR. Drinking water health advisories provide information on contaminants that can cause human health effects and are known or anticipated to occur in drinking water. EPA’s health advisories are nonenforceable and nonregulatory. Instead, they provide technical information to drinking water system operators, as well as federal, state, tribal, and local officials, on health effects, analytical methods, and treatment technologies associated with drinking water contamination.

In 2006, EPA conducted limited testing of agricultural sites in Alabama where sewage sludge was applied from a local wastewater treatment plant that received wastewater from numerous industrial sources, including facilities that manufacture and use PFOA. The results from the testing indicated elevated levels of “other perfluorinated chemicals” in the sludge and the soil that received the sludge. EPA then conducted sampling of the local public drinking water. Using the sampling, provisional health advisory values for PFOA were developed to assess potential risk from exposure through drinking water. Yet, at the time, information on the toxicity of perfluorinated chemicals was limited, and epidemiological studies of exposure to PFAS and adverse health outcomes in humans were inconclusive.

In 2016, EPA issued a lifetime drinking water health advisory for PFOA of 0.07 micrograms per liter (µg/L), equivalent to 70 parts per trillion (ppt), based on a reference dose derived from a developmental toxicity study in mice. EPA’s risk assessment reflected that, as a general matter, a single exposure to a developmental toxin at a critical time in development can produce an adverse effect. In addition, the study concluded that short-term exposure to PFAS can potentially be harmful to humans. Thus, EPA recommended a lifetime health advisory for PFOA of 0.07 μg/L to apply to both short-term (i.e., weeks to months) scenarios during instances of vulnerable health, such as pregnancy and lactation, as well as to lifetime-exposure scenarios.

The 2016 drinking water health advisories for PFOA and PFOS were replaced in June 2022 when EPA issued interim updated drinking water health advisories. EPA’s 2022 health advisories, which identify the concentration of chemicals in drinking water at or below which adverse health effects are not anticipated to occur, are 0.004 ppt for PFOA and 0.02 ppt for PFOS. The 2022 health advisories are only interim.

In March 2023, EPA proposed an NPDWR for six PFAS. The proposed rule 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. EPA anticipates finalizing the regulation by the end of 2023 and expects that if fully implemented, the rule “will prevent thousands of deaths and reduce tens of thousands of serious PFAS-attributable illnesses.”

EPA PFAS action plans and Strategic Roadmap. Over the years, EPA has issued several PFAS-related “action plans.” These action plans set forth EPA’s short-term and long-term strategies and goals related to PFAS.

First, in 2009, EPA published its Long-Chain Perfluorinated Chemicals (PFCs) Action Plan. The plan was intended to describe the courses of action the agency planned to pursue in the near term to address its concerns about PFAS. Notably, the action plan was one of the first times EPA outright acknowledged a link between PFAS and adverse health outcomes. The introduction to the action plan provided that “it can reasonably be anticipated that continued exposure could increase body burdens to levels that would result in adverse outcomes.” The action plan then discussed previous rulemakings under TSCA and areas of concern regarding direct releases of PFAS into the environment.

A more robust action plan was published by EPA in 2019. The EPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (2019 Action Plan) was intended to outline the steps EPA was taking to protect public health by addressing PFAS. EPA provided four “PFAS management actions” and additional short-term actions. The PFAS management actions included initiating a regulatory process to set maximum contaminant levels (MCLs) for PFOA and PFOS, designating PFOA and PFOS as “hazardous substances,” developing groundwater cleanup recommendations for PFOA and PFOS at contaminated sites, and developing an estimate of the amount of a chemical a person can ingest daily over a lifetime or less that is unlikely to lead to adverse health effects. Short-term actions included developing analytical methods and tools for understanding and managing PFAS risk, promulgating significant new use rules that require EPA notification before chemicals are used in new ways that may create human health and ecological concerns, and using enforcement actions to help manage PFAS risk.

The 2019 Action Plan was followed up in 2021 by EPA’s most expansive PFAS strategy to date, the PFAS Strategic Roadmap: EPA’s Commitments to Action 2021–2024 (Strategic Roadmap). The Strategic Roadmap builds upon the 2019 Action Plan and expands the agency’s approach to address PFAS. The Strategic Roadmap lays out the agency’s proposed actions through 2024, including:

  • establishing enforceable PFAS drinking water limits;
  • designating PFAS as hazardous substances under CERCLA;
  • establishing cleanup efforts and specific requirements for remediation;
  • limiting or prohibiting future uses of PFAS;
  • preventing new releases;
  • developing a national PFAS testing strategy;
  • further study of the effects on human health and the environment, including several research grants, requiring PFAS manufacturers to conduct and fund the studies; and
  • more research into PFAS treatment technologies.

EPA has made progress toward achieving its goals laid out in the Strategic Roadmap. Beginning in late 2022, EPA issued a memo to “proactively use” its Clean Water Act permitting authorities to reduce discharges of source-specific PFAS and to obtain more comprehensive monitoring information on potential sources of PFAS. EPA provided that the memo will help minimize PFAS pollution in surface water as EPA works to set effluent guidelines, develop analytical methods, and issue water quality criteria for PFAS. In May 2022, EPA took an “important step forward” to protect people from PFAS by adding five PFAS to a list of risk-based values for site cleanups. These values, measured in milligrams per kilogram, are known as Regional Screening Levels and Regional Removal Management Levels. However, screening and removal management levels are not cleanup standards. They are risk-based values that help EPA determine if further investigation or actions are needed to protect public health, such as sampling, assessing risks, and taking further action. These mechanisms allow site teams to make better site decisions that will protect nearby communities.

EPA also issued a proposal to designate two of the most widely used PFAS as hazardous substances under CERCLA.

EPA continues to propose and enact significant new use rules related to PFAS. In January 2023, EPA proposed a rule that would prevent anyone from starting or resuming, without a complete EPA review and risk determination, the manufacture, processing, or use of an estimated 300 PFAS that have not been made or used for many years, known as “inactive PFAS.” The same month, EPA released its final effluent limitations guidelines (ELGs) Plan 15, including a determination that revised ELGs and pretreatment standards are warranted for reducing PFAS in leachate discharges from landfills. Plan 15 also includes an expansion of the ongoing study of PFAS discharges from textile manufacturers and a new study of influents and publicly owned treatment works.

EPA is making progress to achieve the goals of the Strategic Roadmap and will continue to utilize its rulemaking and advisory authority to, in its own words, “accelerate[] the pace of research and actions needed to tackle the PFAS crisis and protect American communities.”

PFAS Legislation

EPA is not alone in its efforts to accelerate the study and regulation of PFAS. Congress has also made attempts to regulate PFAS and has provided funding for PFAS research and remediation. Several congressional bills have been introduced to assist with EPA’s goals under the 2019 Action Plan and Strategic Roadmap.

One of the most significant bills, the PFAS Action Act of 2019, was introduced by a bipartisan group of U.S. senators to mandate EPA to declare PFAS as hazardous substances eligible for cleanup funds under CERCLA. The bill also would have enabled a requirement that polluters undertake or pay for remediation. Although the bill was passed by the House of Representatives, the bill was never passed by the Senate.

Similarly, the Keep Food Containers Safe from PFAS Act of 2021 never made it out of the House. The act was intended to “amend the Federal Food, Drug, and Cosmetic Act to prohibit the introduction or delivery for introduction into interstate commerce of food packaging containing intentionally added PFAS, and for other purposes.”

The National Defense Authorization Act for Fiscal Year 2020 (NDAA) authorized Congress to direct EPA to develop a process for prioritizing PFAS or classes of PFAS that should be subject to additional research efforts based on potential for human exposure to, toxicity of, and other available information. EPA was also directed to identify existing test data for PFAS (both publicly available and submitted to EPA under TSCA) that should be considered prior to requiring further testing to ensure adherence to the TSCA goal of reducing animal testing. The NDAA was signed by the president and became law at the end of 2019.

Under the direction of Congress, enabled by the NDAA, EPA immediately added certain PFAS to the list of chemicals required to be reported under the Emergency Planning and Community Right-to-Know Act.

PFAS have also been addressed in larger bills that are not environmentally focused, such as the 2021 Bipartisan Infrastructure Law. The Bipartisan Infrastructure Law provides $9 billion to invest in drinking water systems specifically impacted by PFAS and other emerging contaminants, including $4 billion through the Drinking Water State Revolving Fund (DWSRF) and $5 billion through EPA’s Emerging Contaminants in Small or Disadvantaged Communities Grant Program. States and communities can also access an additional nearly $12 billion in DWSRF funds dedicated to making drinking water safer.

Most recently, in June 2023, the Senate also tried to legislate PFAS through national rules. Senators Tom Carper (D-DE) and Shelley Moore Capito (R-WV)—chair and ranking member of the Senate Environment and Public Works Committee, respectively—released draft PFAS legislation (Draft Package) for stakeholder comment. The Draft Package seeks to compel EPA to make official national rules for PFAS. Currently, state PFAS laws have varied in stringency. Some of the important provisions of the Draft Package include:

  • Setting a September 30, 2024, deadline for EPA to complete its ongoing rulemaking process to set drinking water standards for specific PFAS
  • Requiring EPA to contract with the National Academies of Sciences, Engineering, and Medicine to carry out a study within a year from enactment on both beneficial and nonessential uses of PFAS in commerce
  • Authorizing $5 million for fiscal years 2024 through 2028 for EPA to educate the public regarding the hazards or potential risks resulting from various levels of exposure to PFAS
  • Establishing an annual report from EPA to Congress on risk management and communication strategies used by the states, territories, and tribes for the hazards and potential risks posed by PFAS
  • Authorizing $500 million for fiscal years 2024 through 2028 for EPA to direct research activities and grants to carry out a research and technology development program on nonregulatory strategies for the prevention, detection, destruction, and verification of emerging contaminants, with a focus on PFAS
  • Creating a new emergency assistance authority for EPA to help small, rural, tribal, underserved, or disadvantaged communities address PFAS contamination

It is clear that EPA and Congress intend to further their drive to establish national and enduring PFAS rules. It can be expected that additional rulemaking and legislating will continue intensely in the near future.

State-Level Regulation of PFAS

As EPA increased its focus on PFAS regulation at the federal level, some individual states followed suit at the state level. Specifically, some states established their own drinking water standards (some of which are stricter than EPA’s suggested standards under the 2022 drinking water health advisories) and limited or prohibited the use of PFAS in consumer products sold in their state.

State drinking water regulations. States that have enforceable drinking water standards include Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and Wisconsin. Other states have adopted guidance levels, notification levels, and/or health advisories for PFAS in drinking water, including Arkansas, California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Minnesota, New Mexico, North Carolina, Ohio, Oregon, and Washington.

For example, New York’s drinking water standards for emerging contaminants are among the most protective in the country. In 2020, New York State set MCLs of 10 ppt each for PFOA and PFOS. New York is working to pass even more drinking water standards and notification levels for up to 23 PFAS.

State consumer products regulations. Several states have enacted outright bans on the manufacture and sale of products with “intentionally added PFAS.” The prohibitions generally define “intentionally added PFAS” as a “chemical in a product that serves an intended function in the product component,” such as PFAS added to make a product nonstick or waterproof.

Examples of PFAS prohibitions include:

  • California banned, starting January 1, 2023, the sale of “plant fiber-based food packaging” that contains PFAS that have been intentionally added to have a functional or technical effect in the product or are present in the product at or above 100 parts per million (ppm).
  • Colorado will ban, starting January 1, 2024, any paper-based food packaging with intentionally added PFAS.
  • Maryland will ban, starting January 1, 2024, a manufacturer or distributor from manufacturing or knowingly selling, offering for sale, or distributing for sale or use in the state a food package or food packaging component designed and intended for direct food contact to which PFAS chemicals were intentionally added.
  • Illinois will prohibit, beginning January 1, 2025, the manufacture or sale of any cosmetic product that contains specified intentionally added ingredients.

Other state PFAS-related regulations. Some states have enacted very specific regulations in order to tailor PFAS regulations to the state’s unique ecological features and PFAS-related issues.

For example, Maine enacted LD 1471, which amends the Maine Metallic Mineral Mining Act. LD 1471 includes a provision prohibiting the Department of Environmental Protection from issuing a mining permit for a mining operation that will involve or result in the release of PFAS into the air, soil, groundwater, or surface water within any mining area or affected area.

Minnesota enacted HF 172, an appropriations bill, which provides $478,000 to the Board of Regents of the University of Minnesota to develop novel methods for the detection, sequestration, and degradation of PFAS in Minnesota’s lakes and rivers.

Yet, the aforementioned bills have not been without criticism and delays. Most notably, Maine’s Department of Environmental Protection officially delayed the reporting requirements of its landmark PFAS regulation for two years. Originally, the regulation required companies doing business in the state to begin reporting on the presence of PFAS in their products as of January 1, 2023. However, legislation was passed delaying the reporting requirement to January 1, 2025, and creating reporting exemptions for manufacturers that employ 25 or fewer people, and for a “used product or used product component.” The Maine Legislature’s Joint Standing Committee on Environment and Natural Resources plans to hold public meetings later this year to discuss additional issues, with the possibility of further changes in 2024.

As these laws go into effect, the landscape of PFAS manufacturing and the sale of PFAS-containing products will be significantly impacted. Judging from the tenacity of many states to outpace EPA in PFAS regulation, it is likely that state regulation of PFAS will continue at an accelerated pace.

Early PFAS Litigation

Like PFAS regulation, PFAS-related litigation began in earnest in the late 1990s and early 2000s. PFAS litigation began with individual plaintiffs or classes of plaintiffs from an allegedly contaminated geographic area suing particular PFAS manufacturers for injuries caused by contamination resulting from disposal of PFAS into the local environment. As PFAS litigation evolved, the landscape shifted to broader class action suits involving individuals from all over the country, public utilities, and governmental entities suing for a wide range of relief for injuries or potential injuries resulting from contaminated drinking water and consumer products.

The seminal PFAS lawsuit was filed in the U.S. District Court for the Southern District of West Virginia in 1999. The case, Tennant v. E.I. du Pont de Nemours & Co., established that the DuPont chemical company disposed of more than 7,000 tons of PFOA-laced sludge onto Tennant’s property and into the Ohio River, from which the chemical leached into the ground and entered the local water table. The contaminated water killed many of Tennant’s cattle.

Next, in 2001, 80,000 Americans in West Virginia and Ohio filed a variety of claims under state tort law arising from PFOA contamination of their water supply by DuPont. The case, Leach v. E.I. du Pont de Nemours & Co., paved the way for subsequent PFAS litigation. The plaintiffs in Leach alleged that DuPont discharged PFOA from DuPont’s Washington Works Plant near Parkersburg, West Virginia, contaminating local drinking water. The plaintiffs alleged that they had consumed water contaminated by PFOA and suffered or may eventually suffer bodily injury and wrongful death due to the exposure. Leach settled in 2005 for $343 million.

After Leach, EPA sued DuPont pursuant to TSCA in 2004, alleging that DuPont did not submit to the agency information the company had obtained regarding PFOA. Specifically, EPA alleged that DuPont withheld information revealing a substantial risk to human health and the environment based on the information DuPont’s own scientists had about PFOA toxicity and its presence in local drinking water supplies. The parties settled a year later for $16 million. In 2006, 3M agreed to pay a $1.5 million penalty for having withheld certain PFAS information from EPA.

In 2006, the C8 Science Panel, formed as part of the settlement agreement in Leach, began its work to confirm the extent of probable links between PFOA exposure and disease. The panel utilized blood samples and other data collected from the Leach class members participating in the studies. The panel identified a “probable link” between six diseases and PFAS exposure: high cholesterol, ulcerative colitis, thyroid disease, testicular cancer, kidney cancer, and pregnancy-induced hypertension. The panel additionally reported that it found no probable link for over 40 other human diseases, including autoimmune diseases such as rheumatoid arthritis, lupus, type 1 diabetes, Crohn’s disease, and multiple sclerosis.

In 2010, the State of Minnesota commenced an action against 3M in Hennepin County alleging that 3M’s release of PFAS into the environment resulted in natural resource damages. The company legally disposed of its PFAS-containing wastes in landfills in the Twin Cities metropolitan area. The chemicals leached into the groundwater in nearby cities as well as Minnesota’s Lake Elmo. In 2018, the State of Minnesota settled the lawsuit against 3M for $850 million.

DuPont was further hit with several large individual verdicts. In 2015, a kidney cancer case against DuPont returned a verdict of $1.6 million. Two testicular cancer cases returned verdicts of $5.6 million and $12.5 million—including a $10.5 million punitive damages award. The settlements pushed DuPont to settle the remainder of the class action for a whopping $671 million for 3,550 claimants (about half of all claimants claimed either thyroid disease or high cholesterol, 300 claimed ulcerative colitis, 200 claimed preeclampsia, 210 claimed kidney cancer, and 70 claimed testicular cancer).

PFAS Litigation Today

In recent years, plaintiffs have filed broader class action suits that are typically consolidated into multidistrict ligation (MDL). Three cases in particular provide a survey of the kinds of PFAS lawsuits that are on the rise: drinking water contamination, consumer food products and food packaging, and consumer cosmetic products.

Drinking water litigation. An MDL was formed in South Carolina in 2018 to litigate allegations of PFAS contamination from the use of specific PFAS-containing aqueous film-forming foam (AFFF MDL). A vast majority of the complaints were filed by or on behalf of individuals (and their spouses or survivors). Complaints were also filed by governmental entities, public water suppliers, and private companies. The defendants encompassed nearly all of the largest AFFF and PFAS manufacturers, including DuPont, 3M, and Chemours. Other defendants, including smaller AFFF manufacturers, distributors, suppliers, retailers, and vendors of firefighting foams, were also included.

The complaints in the AFFF MDL sought a variety of damages, such as compensatory damages, damages for medical expenses, funding for medical monitoring, and compensation for pain and suffering. Various plaintiffs also sought damages for injuries to wells, water, and other property, as well as the costs of investigating, remediating, restoring, monitoring, or treating that property.

Over 20 attorneys general filed lawsuits that were centralized in the AFFF MDL. The lawsuits alleged a number of claims, including defective design, failure to warn, public nuisance, trespass, and negligence. The attorneys general sought to recover damages and costs related to the investigation, cleanup, restoration, and treatment of natural resources from PFAS contamination. Several complaints sought injunctive relief. For example, the New Jersey attorney general sought an injunction to forbid the defendants from continuing to violate New Jersey’s Consumer Fraud Act. One utility sought an injunction to require the defendants to abate the nuisance they have created. Some complaints pursued an injunction that would require the defendants to investigate and remediate as may be necessary due to their AFFF products. Other state attorneys general, such as New York’s attorney general, added fraudulent transfer claims, claiming that DuPont founded Chemours to insulate itself from environmental liabilities.

To address the “complexity” of the AFFF MDL, the court initially endorsed a bellwether program that focused only on certain cases filed by water providers and water utilities. The goal of the program was to ultimately have a representative case tried before a jury, which could assist in informing the parties on the strengths and weaknesses of their cases and defenses and, by extension, potentially help to resolve a broader group of cases in the MDL.

Of the water systems involved in the first bellwether program, the City of Stuart, Florida, had its claim selected to be tried in an initial bellwether trial, City of Stuart v. 3M Co. The complaint filed by the city alleged that 3M and other defendants were liable for the contamination of the city’s water supply based on various theories, including strict liability failure to warn, negligent failure to warn, design defect, and negligence. Stuart’s attorney said that the city “wants to be awarded more than $100 million to cover what has already been spent on projects like a multi-million dollar treatment plant and filtration system keeping levels of the chemicals undetectable or below the health advisory limit.”

On June 2, 2023, multiple defendants reached preliminary settlements, subject to court approval, not only in the Stuart matter but also of all claims filed against them by public water systems in the AFFF MDL. DuPont, Chemours, and Corteva announced a tentative agreement to resolve all claims alleging that the companies’ products contaminated public water systems with PFAS. The proposed agreement, totaling $1.185 billion, would resolve all PFAS-related drinking water claims brought by the public water systems class in the AFFF MDL as well as all public water suppliers around the country and in U.S. territories that could potentially have such claims. As part of the settlement, the three companies would collectively establish a water district settlement fund that would fund the removal of PFAS from public drinking water systems. Of the $1.185 billion, Chemours would contribute approximately $592 million, DuPont approximately $400 million, and Corteva approximately $193 million.

That settlement was followed by 3M’s settlement to resolve public water suppliers’ current and future claims concerning PFAS contamination. On June 22, 2023, 3M entered into a proposed settlement agreement with the public water suppliers to pay between $10.5 billion and $12.5 billion over the next several years. 3M agreed to pay up to an additional $5 million to cover the costs associated with the notice process, which would begin 14 days after the entry of the order granting preliminary approval. The settlement amount would be divided among “phase one” and “phase two” qualifying class members. Phase one class members are those with a measurable concentration of PFAS before June 22, 2023. Phase two class members are public water systems that do not have a water source with a documented concentration of PFAS on or before June 22, 2023, but are either required to test for certain PFAS under the SDWA’s fifth Unregulated Contaminant Monitoring Rule or serve more than 3,300 people as defined under the Safe Drinking Water Information System.

Phase one qualifying class members would be allocated $6.875 billion of the settlement amount, paid in installments. Phase two qualifying class members would be allocated between $3.625 billion and $5.625 billion, also payable in installments. The phase one funds would be separated into three distinct funds: the phase one action fund, the phase one supplemental fund, and the phase one special needs fund. Similarly, the phase two funds would be separated into four distinct funds: the phase two action fund, the phase two supplemental fund, the phase two special needs fund, and the phase two testing compensation fund. The action funds are intended to provide compensation for impacted water sources with a settlement amount based on data submitted by the plaintiffs. The supplemental funds compensate qualifying class members showing no measurable concentration of PFAS in their water sources currently but who show measurable concentrations later, or who have an impacted water source that did not exceed the proposed federal or an applicable state MCL under the SDWA at the time they submitted their claims and because of later testing show an exceedance of MCLs. The settlement award from the supplemental fund would be approximate (as close as reasonably possible) to the settlement award that each impacted water source would have been allocated had it been in the action fund with the later PFAS concentration. The special needs funds compensate qualifying class members who have already spent money to address PFAS detections in their impacted water sources, such as by taking wells offline, reducing flow rates, drilling new wells, pulling water from other sources, or purchasing supplemental water. The phase two testing compensation fund was created to allow active public water systems, with no evidence of PFAS contamination prior to June 22, 2023, to conduct testing that could help them establish eligibility for payments from the phase two fund.

If the settlement were ultimately approved, 3M would pay the first installment no earlier than July 1, 2024, and the remainder of the settlement amount would be paid in 12 separate installments due on April 15 of each calendar year from 2025 through 2036. Phase one and phase two class members would be paid simultaneously in accordance with the payment schedule. The phase two payments would have a “floor” of $3.625 billion and a “cap” of $5.625 billion.

On July 26, 2023, a group of 22 states and U.S. territories opposed the 3M settlement. The group, led by California and including Texas, New York, and the District of Columbia, opposed on the grounds that the $10 billion settlement is inadequate. Further, the group interpreted provisions in the settlement to mean that public water systems would be required to decide whether to opt in or out of the settlement before they would know how much money they would receive. The group was also concerned that the settlement could shift liability for future health issues caused by PFAS from 3M onto the water systems themselves. In addition to the states and territories, three cities in New York opposed the settlement on the grounds that the settlement would reduce the amount of money (from 3M) available to clean up PFAS Superfund sites in their jurisdiction as well as other sites across the country.

On August 7, 2023, revisions to the proposed DuPont settlement were filed. In the revised settlement, DuPont agreed to:

  • Provide public water providers with a method for estimating the payout amounts they would receive (under the original proposed settlement, they would have had to make their opt-out decisions without that information)
  • Give public water providers 90 days to opt out, instead of the 60 days included in the original proposed settlement
  • Withdraw a requested nationwide injunction, or temporary halt, of other PFAS lawsuits by the states against DuPont
  • Clarify that the proposed agreement will not prevent states like California from recovering more money from DuPont

On August 22, 2023, the court provided preliminary approval for the DuPont proposed settlement. The court set September 5, 2023, as the date to begin the notice plan for all eligible claimants and as the start of the 90-day period for water utilities to determine whether or not to opt in. Any objections to the settlement are due by November 4, 2023. Any eligible class members must opt out of the settlement by December 4, 2023. A list of all eligible class members that opt out or object must be filed with the court by December 6, 2023. DuPont has until December 18, 2023 (14 days after the opt-out deadline) to exercise its walk-away rights under the settlement agreement. The final fairness hearing is set for December 14, 2023. At the hearing, the judge will consider objections and concerns before deciding whether to give final approval.

Similarly, on August 29, 2023, 3M secured preliminary approval for its settlement. The notice plan to all eligible claimants and the period for claimants to opt out or formally object to the settlement will start no later than September 12, 2023. Any objections to the settlement are due by November 11, 2023. Any eligible class members must opt out of the settlement by December 11, 2023. Details on 3M’s walk-away rights triggered by opt-outs or 3M’s rights to otherwise terminate the settlement have not been disclosed. The settlement will be considered during the final fairness hearing on February 2, 2024.

The preliminary approvals here do a number of things: they certify, for settlement purposes only, the settlement class; approve the notice to the settlement class and the notice plan; and appoint class counsel and class representatives, as well as a notice administrator, claims administrator, special master, and escrow agent. The preliminary approvals also establish the qualified settlement fund. In addition, the preliminary approvals put in place stays of all litigation brought by releasing parties against these two settling defendants.

The next steps in the AFFF MDL will be the final approval (or denial) of the proposed settlements and, if approved, notice to all eligible claimants, and various decisions by those public water suppliers to opt in, opt out, or further oppose the settlement. Depending on these independent decisions of the eligible claimants, it is possible that 3M’s and DuPont’s respective walk-away rights could be triggered.

On the horizon are other expected bellwether programs, including litigation of personal injury claims. The parties were directed to select 28 personal injury claims for the second bellwether pool involving plaintiffs who were allegedly exposed to AFFF through drinking water contamination. These cases will include eight kidney cancer claims, eight testicular cancer claims, eight thyroid disease claims, and four ulcerative colitis claims. In addition, they will be limited to individuals alleging that they were exposed to contaminated water near the Peterson Air Force Base, Colorado Springs Municipal Airport, Willow Grove Naval Air Station Joint Reserve Base, and Naval Air Warfare Center in Warminster.

Food packaging litigation. Turning to consumer products litigation, ongoing lawsuits against large national restaurant chains have been filed related to PFAS contamination in their food products. Two lawsuits were filed in March and April 2022 targeting McDonald’s and Burger King, seeking class action status. Essentially, the lawsuits allege that the restaurants committed fraud, misrepresentation, and false advertising for claiming that the food they serve is safe. The plaintiffs allege that the restaurants’ food is not safe as represented because the product packaging contains high levels of PFAS.

In Hussain v. Burger King Corp., the plaintiff alleged that Burger King represented that its food packaging was “safe” and “sustainable.” However, the plaintiff alleged that Burger King’s products are “not safe [and pose] a significant health risk to unsuspecting customers” and that Burger King did not “notify consumers” that its food products are “unsafe and harmful to the environment” as they contain “heightened levels” of PFAS.

The complaint against McDonald’s filed in Illinois, Clark v. McDonald’s Corp., alleges causes of action for violation of state consumer protection statutes, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, breach of express warranties, breach of the implied warranty of merchantability, violation of the Magnuson-Moss Warranty Act (because McDonald’s allegedly knowingly sold a defective product without informing consumers about the defects), and unjust enrichment. The litigation is ongoing.

The McDonald’s and Burger King suits are expected to spark many additional lawsuits against large national restaurant chains on similar grounds. In a recent investigation, Consumer Reports tested more than 100 packaging products from 24 large national restaurant chains and grocery stores, finding that nearly half had at least one product with high PFAS levels in some items.

Cosmetic products litigation. Consumer products lawsuits have also been filed against some of the world’s largest manufacturers of hair and beauty products.

In 2022, a National Institutes of Health study concluded that women who used certain hair-relaxing products several times a year were at a greater risk of developing uterine cancer and other illnesses. The study, conducted over 11 years, surveyed approximately 34,000 women aged 35–74. Following the study, numerous cases were filed against manufacturers and sellers of PFAS-containing cosmetic products. Many of the cases were later consolidated in the U.S. District Court for the Northern District of Illinois.

The suit, In re Hair Relaxer Marketing, Sales Practices, and Products Liability Litigation, includes allegations that the defendants, mainly L’Oréal USA, which claims that it “leads the #1 beauty market in the world,” manufactured, sold, distributed, advertised, and promoted toxic hair products that caused the plaintiffs to develop cancers and other injuries. The plaintiffs seek compensatory and punitive damages, monetary restitution, medical monitoring and equitable relief, and all other available remedies as a result of injuries incurred by the defendants’ defective products and other wrongful practices. The litigation is ongoing.

Other PFAS litigation. Also recently, individual states have litigated claims against manufacturers of PFAS-containing products. For example, New Jersey announced in June 2023 a proposed $393 million settlement with Solvay Specialty Polymers USA, LLC that would ensure the remediation of contamination near Solvay’s facility in West Deptford that manufactures plastic components for consumer products. This contamination included the release of PFAS. The proposed settlement commits Solvay to:

  • pay for and implement comprehensive remedial activities at and in the vicinity of its West Deptford facility;
  • provide financial support for certain public water system upgrades necessary to remove PFAS from drinking water;
  • further investigate and address certain PFAS impacts to public water systems and private potable drinking water wells in the vicinity; and
  • compensate the public for natural resources injured by the discharge of hazardous substances.

Solvay must also post $214 million to guarantee New Jersey sufficient financial resources to complete the cleanup should Solvay fail to meet its ongoing remedial obligations. The agreement does not require Solvay to admit fault.

Additionally, in June 2023, the Arkansas attorney general filed a lawsuit in his own state against more than 30 companies, which he claims are responsible for spreading PFAS throughout the state. The lawsuit, filed in Washington County Circuit Court, accuses chemical giants such as 3M, DuPont, Corteva, and Chemours of contaminating the state’s natural resources, including drinking water and soil, with PFAS.

Certainly, the individual, state-, and federal-level lawsuits will be ongoing and numerous.

Looking Forward

PFAS regulation and litigation are continuously expanding to bring a more holistic approach to tackling the issues PFAS contamination potentially presents to the environment and human health. PFAS regulation and litigation traditionally focused on specific PFAS and individual chemical companies that manufactured and disposed of PFAS.

The efforts of EPA, U.S. lawmakers, consumer groups, and individuals have resulted in an increased focus on the study of PFAS and research into the impacts of PFAS on human health and the environment. Regulation and litigation have expanded to include not only manufacturers of PFAS but also companies, for example, that sell PFAS-containing industrial and consumer products. Looking forward, the trend of PFAS-related laws and lawsuits, which began at the turn of the century, will continue deep into the current decade and beyond. There are undoubtedly countless rulemakings, laws, and lawsuits on the horizon.

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    Cory Novak

    Goldberg Segalla

    Cory Novak is an associate with Goldberg Segalla in Chicago, where he counsels insurers on complex coverage matters under a variety of policies and handles insurance coverage litigation and regulatory matters as well as environmental law.

    John Parker

    Goldberg Segalla

    John Parker is a partner with Goldberg Segalla in Manhattan and cochair of the firm’s Toxic Tort and Environmental practice groups. He defends clients across the country in complex environmental and toxic tort litigation and advises them on environmental regulatory and compliance matters.

    Oliver Twaddell

    Goldberg Segalla

    Oliver Twaddell is a partner with Goldberg Segalla in Manhattan, where he handles a wide range of commercial and general litigation in federal and state court, including cases involving business torts, property damage, land use and environmental contamination, and toxic torts.