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For nearly a decade, plaintiffs have been filing lawsuits over the alleged environmental and health consequences associated with per- and polyfluoroalkyl substances (PFAS). Experts expect a multiyear surge in both litigation and concessions to continue even faster in 2024, as the range of lawsuits and companies targeted expands and the number of lawsuits increases outside of the ongoing landmark Multidistrict Litigation (MDL) case in the U.S. District Court of South Carolina filed in 2019.
The South Carolina MDL is legally known as the Aqueous Film-Forming Foams (AFFF) Products Liability Litigation, or MDL No. 2873, and refers to the firefighting foam used to extinguish liquid fires at various airports, military bases, and industrial sites. The plaintiffs allege that the chemicals contaminated groundwater at those locations, “causing personal injury, a need for medical monitoring, property damage, or other economic losses.”
The MDL, which has since expanded to more than 2,500 pending cases of PFAS emissions linked to their use in AFFF, is among more than 6,000 PFAS cases filed since 2005.
New U.S. Environmental Protection Agency (EPA) guidelines and regulations will also factor into the current litigation and will shape the arguments used in future lawsuits.
In 2023 alone, a bipartisan group of 13 states attorneys general (27 to date) initiated lawsuits against PFAS manufacturers and key users, according to Safer States, a national alliance of environmental health organizations and coalitions from across the nation working to safeguard people and the planet from toxic chemicals.
“We anticipate that the groundswell of national PFAS regulation will continue into 2024 as EPA continues its push to achieve the agency’s stated goals to ‘research, restrict, and remediate’ PFAS contamination of air, land, and water,” wrote a group of Morgan Lewis attorneys in a recent report.
On 29 March 2023, the EPA released a proposed drinking water rulemaking that would establish legally enforceable drinking water maximum contaminant levels (MCLs) for the following six PFAS compounds:
- Perfluorooctanoic acid (PFOA); 4.0 parts per trillion (ppt)
- Perfluorooctane sulfonic acid (PFOS); 4.0 ppt
- Perfluorononanoic acid (PFNA); 1.0 Hazard Index
- GenX chemicals: hexafluoropropylene oxide dimer acid (HFPO-DA); 1.0 Hazard Index
- Perfluorohexane sulfonic acid (PFHxS); 1.0 Hazard Index
- Perfluorobutane sulfonic acid (PFBS); 1.0 Hazard Index
Many state and local governments have filed lawsuits over claims of PFAS contaminants found in their water supply, including Huntsville, Ala.-based attorney Hunter Garnett of Garnett Patterson Injury Lawyers.
“The increasing availability of scientific studies and data regarding the specific levels of contamination will undoubtedly lead to more PFAS lawsuits,” Garnett told 3E. “We expect that many of our cases will go to trial and that we will be able to prove our claims.”
A Scientific Evolution
Garnett’s caseload in Alabama is a microcosm of the national trend of a rise in PFAS-related personal injury tort cases. Why? The uptick in health studies — about 2,500 studies were completed in 2023, more than double the amount published in 2022 — has helped to link the chemicals to the injuries or illnesses suffered by the alleged victims of PFAS exposure.
“Without medical studies, causation testimony is nearly impossible,” Garnett said. “For the past several years, the lack of scientific studies prohibited lawyers from succeeding on personal injury claims. Now, the science is evolving and we have learned what specific illnesses are caused by PFAS.”
The range of lawsuits and companies targeted has expanded to include not only manufacturers but also downstream into the supply chain.
In 2023, lawsuits targeting major chemical companies over alleged contamination of U.S. drinking water with toxic PFAS chemicals culminated in settlements exceeding $11 billion.
At the local level, Garnett has filed personal injury and wrongful death claims for more than 20 clients so far, and his firm expects to file more. The suits allege negligence, wantonness, private nuisance, battery, and fraudulent concealment against 3M Company, Toray Fluorofibers, and Daikin America.
“We allege that the Defendants discharged PFAS chemicals into the Tennessee River and surrounding environment, and the PFAS chemicals caused the Plaintiffs to develop kidney cancer, testicular cancer, prostate cancer, pancreatic cancer, liver cancer, bladder cancer, ulcerative colitis, and/or thyroid disease,” Garnett said.
Regulatory Outlook
As the EPA looks to implement its PFAS Strategic Roadmap, companies will need to begin preparing for additional reporting requirements on PFAS. More than 130,000 companies are expected to need to report under the new Toxic Substances Control Act (TSCA) Rule in 2025. Also, additional reporting requirements are expected for those companies that already report PFAS information. Across several industries, companies will need to start collecting information internally as soon as possible.
The field of plaintiffs and defendants has grown to include apparel retailers, restaurants (using affected food packaging), and producers of cosmetics.
In addition, the EPA’s Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is likely to substantially increase litigation risks for potentially responsible parties in site-remediation cases. It will allow plaintiffs to pursue, for example, dischargers of AFFF that contaminated adjacent land and water for compensation.
As part of 3M’s response to its $10.3 billion settlement over the contamination of U.S. public drinking water systems in 300 affected communities, 3M chairman Mike Roman said the company would halt all PFAS production by the end of 2025. 3M was sued on average three times per day in 2021. Other major corporations found to be violators for their PFAS usage, including Chemours, Corteva, and DuPont, collectively agreed to a settlement of more than $1 billion on 2 June 2023.
More legal costs are anticipated for these companies as the scientific knowledge surrounding PFAS continues to advance. Another consequence of the rollout of the EPA’s PFAS roadmap is the lowering of the threshold of PFAS in its recommendation for safe drinking water levels, which could require billions in infrastructure expenses to build new filtration systems if its proposal becomes a requirement, Garnett said.
Approximately 3,400–6,300 water systems used by 70–94 million people use water that contains PFAS levels above what will be allowed under this rule, according to an EPA estimate.
“When these substantial costs are incurred, water providers will look towards the companies who caused the pollution for reimbursement,” Garnett said.
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About the author: Stefan Modrich is a Washington, D.C.- based reporter for 3E. He covers the latest developments in environmental health and safety policy and regulation. Modrich previously wrote for S&P Global Market Intelligence, The Arizona Republic and Chicago Tribune. He is an alumnus of Arizona State University and the University of Zagreb.
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