Lydia R. Dorrance, Ph.D. – Roux Associates, Inc.
Gwen Caviness, M.P.H and Linda C. Hall, Ph.D. – GSI Environmental, Inc.
In the last decade, per- and polyfluoroalkyl substances (PFAS), the class of recalcitrant fluorinated chemicals that are used in everything from non-stick cookware to fast-food wrappers to fire-fighting foam, have gone from being relatively unknown environmental contaminants with little regulation or oversight, to sitting at the epicenter of a full-blown environmental crisis with associated legal liabilities already reaching into the billions of dollars. The environmental and human health liabilities surrounding PFAS are not going away any time soon – on the contrary, like asbestos, PFAS liabilities appear to be both ubiquitous and persistent. In parallel to rapid regulatory developments, particularly at the state level, legal precedents are being set that have huge financial implications for businesses and municipalities. For example:
- Late last year, the California Office of Environmental Health Hazard Assessment (OEHHA) added two PFAS compounds, perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) to the Proposition 65 list of chemicals known to cause reproductive toxicity.[1] This listing comes with warning requirements for manufacturers and businesses and a prohibition on discharges into sources of drinking water — requirements that go into effect in November 2018 and July 2019, respectively. Businesses in non-compliance with Proposition 65 can incur steep civil penalties. Given the pervasiveness of PFAS, the continued overseas manufacture and use of PFOA and PFOS; and their potential import into the US, it’s increasingly important to know what’s in your products!
- Beyond California, courts have handed down verdicts resulting in millions of dollars of compensatory and punitive damages for PFAS-related bodily injury cases.[2] Even larger dollar amounts, some reaching hundreds of millions of dollars, have changed hands in settlements for both class-action toxic tort and natural resource damage cases. In 2017, Dupont settled for $670.7 million dollars on behalf of 3,550 claimants with a further $250 million for future liabilities[3], and earlier this year 3M settled for $850 million dollars with the state of Minnesota for remediation costs and natural resource damages.[4]
- Product liability cases related to PFAS are also on the docket in multiple states. Cases have been brought against the manufacturers of products known to contain PFAS, with claims for personal injury, medical monitoring, property damage, and negligence. [5] In New York state, a local water authority has sued five manufacturers for alleged contamination related to PFOS and PFOA in drinking water. [6]
- A new class action lawsuit has been filed on behalf of all individuals residing in the United States who have detectable levels of PFAS in their blood – estimated to be 95% of the US population.[7] The claim seeks medical monitoring and creation of an independent science panel.[8]
These examples likely represent just the tip of the iceberg as we continue to learn more about the chemical behavior and toxicology of PFAS. PFAS are here to stay – both in the environment and in our legal system. Stay tuned for additional information regarding PFAS legal and regulatory developments, toxicological impacts, and cleanup efforts. Make sure you understand your business’ potential PFAS liabilities and if/how PFAS could ruin your business!
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[1] California Office of Environmental Health Hazard Assessment (OEHHA), Chemicals Listed Effective November 10, 2017 as Known to the State of California to Cause Reproductive Toxicity: Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS), November 9, 2017. https://oehha.ca.gov/proposition-65/crnr/chemicals-listed-effective-november-10-2017-known-state-california-cause, last accessed November 7, 2018.[2] Marc S. Reisch, Three Wins and Three Settlements, but So Far No Progress on a Class Action Agreement with Plaintiffs Over Perfluoroctanoic Acid Contamination of Drinking Water, C&EN, January 30, 2017, available at, https://cen.acs.org/articles/95/i5/DuPonts-PFOA-trials-off-shaky.html, last accessed November 7, 2018.[3] Dupont, DuPont Reaches Global Settlement of Multi-District PFOA Litigation, The Dupont Media Center, February 13, 2017, available at, http://www.dupont.com/corporate-functions/media-center/press-releases/dupont-reaches-global-settlement-of-multi-district-pfoa-litigation.html, last accessed November 7, 2018.[4] Tiffany Kary, 3M Settles Minnesota Lawsuit for $850 Million, Bloomberg, February 20, 2018, available at, https://www.bloomberg.com/news/articles/2018-02-20/3m-is-said-to-settle-minnesota-lawsuit-for-up-to-1-billion, last accessed November 7, 2018.[5] Jonathan Stempel, New York sues 3M, Five Others Over Toxic Chemical Contamination, Reuters, June 20, 2018, available at,https://www.reuters.com/article/us-3m-new-york/new-york-sues-3m-five-others-over-toxic-chemical-contamination-idUSKBN1JG31K, last accessed November 7, 2018.[6] Suffolk County Water Authority, SCWA Pursues Legal Action Against Companies Responsible for PFOS, PFOA and 1,4-Dioxane Contamination, December 1, 2017, available at, https://www.scwa.com/scwa_pursues_legal_action_against_companies_responsible_for_pfos_pfoa_and_14-dioxane_contamination/, last accessed November 7, 2018.[7] CDC (Centers for Disease Control). 2018. Fourth national report on human exposure to environmental
chemicals. Updated Tables. March 2018. Department of Health and Human Services. Centers for Disease Control and Prevention. https://www.cdc.gov/exposurereport/index.html. Biomonitoring California. https://biomonitoring.ca.gov/results/projects/411. Olsen et al. 2008. Decline in perfluorooctanesulfonate and other polyfluoroalkyl chemicals in American Red Cross adult blood donors, 2000-2006. Environmental Science & Technology, vol. 42, no. 13, 4989-4995. Olsen G.W.et al. 2012. Temporal trends of perfluoroalkyl concentrations in American Red Cross adult blood donors, 2000- 2010. Environmental Science & Technology, vol. 46, no. 11, 6330-6338.[8] Cheryl Hogue, U.S. Class-Action Case Targets Nine PFAS Makers, C&EN, October 10, 2018, available at, https://cen.acs.org/policy/litigation/US-class-action-case-targets/96/i41, last accessed November 7, 2018.
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