Last week we continued our series of blogs reflecting on material covered in the Impact of PFAS on Environmental Litigation (Virtual) Conference hosted by Perrin Conferences, with a look at ongoing concerns about the effect of U.S. military PFAS usage. This week, we’ll examine the growing focus on civilian usage and disposal of PFAS.
When certain PFAS chemicals first became cause for concern, it was the manufacturers of the chemicals themselves—firms such as DuPont and 3M—that were the focus of litigation. As focus broadened to end-users and disposers of chemicals that contained harmful PFAS, it was largely the military that came under scrutiny due to its widespread use of AFFF firefighting foam, as we described in last week’s blog. Today, however, there is also widespread focus on civil users, distributors, and disposers of PFAS-containing material, a point driven home by conference presenters.
Some of the entities who have found themselves facing potential PFAS-related liability are unsurprising, being civilian counterparts to military facilities with a documented history of AFFF usage. Among these are airports, fire departments, and chemical plants or storage facilities with a need for rapid Class B fire suppression. As with the military, at issue are both training exercises and “real-world” events, as well as accidental discharges. Civilian users have generally, like the military, phased out usage of “legacy” AFFF that contains or can break down into PFOS or PFOA—in some cases as required by state laws, some of which have, to date, been stricter than federal regulations, as noted during the conference.
This plane skidded off a runway at LaGuardia Airport in March 2015 and was sprayed with foam because it was leaking fuel. (Photo Credit: Wiki/Leonard J. DeFrancisci. License.)
Other entities that have been blamed for PFAS contamination include companies that have used PFAS in the manufacturing of end-products other than firefighting foam: coated food wrappers and other packaging, textiles such as carpets and waterproof garments and footwear, as well as cosmetics, adhesives and sealants, and nonstick coatings used in cookware. One notable ongoing case described during the conference involves both 3M and Wolverine World Wide, Inc., the latter having allegedly used the PFAS-containing chemical “Scotchgard” in its manufacturing of boots. That case was allowed to proceed as a class-action suit last year.
More recently, however, focus has gone beyond manufacturers to other enterprises whose alleged role in PFAS contamination has been more passive. One key example highlighted at the conference is the water treatment and supply industry, which never manufactured or used PFAS, but which in many places may have created a PFAS waste stream into public waters by not fully extracting the chemicals from contaminated wastewater. Compliance with U.S. EPA and state regulations has been costly for water treatment plants, leading to lawsuits seeking damages. One example discussed at the conference is Middlesex Water Co. v. 3M Co., et al. While Middlesex Water Co.’s case seeking damages from PFAS manufacturer 3M is currently in mediation, the utility—which is engaged in both wastewater treatment and drinking water supply—has become the target of litigation itself. As noted in the conference, in the fall of 2021 over 60,000 New Jersey residents served by Middlesex Water joined two class action suits against the company. More recently, six New Jersey towns began exploring legal action of their own.
Litigation related to civilian sources of PFAS contamination, like PFAS litigation in general, exists in a state of flux. As noted by conference presenters, the liability of producers, distributors, end-users, and disposers has yet to be fully settled in legal terms, since most cases to date have ended with settlements. In addition, there have been setbacks for plaintiffs, such as the recent decision by the U.S. District Court for the Southern District of New York to dismiss Suez Water New York, Inc. v. E.I. Du Pont de Nemours and Co., et. al., despite a similar action (Suez Water New Jersey, Inc., v. E.I. Du Pont de Nemours and Co., et. al.) being permitted to proceed by the U.S. District Court for the District of New Jersey just a few months before. Legal theories are currently being tested in court, with bellwether trials featuring water utilities as plaintiffs scheduled to begin in 2023.
In the meantime, as we discussed in a previous blog, all eyes are on the federal government’s expected classification of select PFAS, including PFOS and PFOA, as hazardous chemicals under CERCLA. Presenters indicated that such an act is likely to expand and clarify liability. In addition, observers are taking note of research into lesser-known PFAS. Presenters commented that of the thousands of PFAS chemicals, only a relative handful have raised environmental or health concerns thus far. However, data on most of those chemicals is scant, and it remains to be seen whether additional harmful PFAS will be identified as research expands.
TRG will continue to follow developments related to the historical usage and disposal of PFAS end-products. Just last week, we participated in the webinar “Identification of PFAS Sites and Questions of Legal and Insurance Coverage,” which was also hosted by Perrin Conferences. We will share what we learned from it in another blog post soon. Stay tuned.