Part 2 of 2: Per- and Polyfluoroalkyl Substances (PFASs):

Emerging Contaminant Litigation Despite Federally Promulgated Rule

By Shalene Thomas and Brad Glisson
 
Per- and Polyfluoroalkyl Substances (PFASs) are a widely used class of synthetic chemicals of emerging concern to human health and the environment. These chemicals repel oil and water from clothing, carpet, furniture  and cookware and are used to suppress fires. PFASs have been ubiquitously used in aqueous film-forming foam (AFFF) to extinguish hydrocarbon-based fires and in manufacturing processes related to photolithography, photographic coatings applications, electroplating mist suppressants and aviation hydraulic fluids. Although chemicals in the emerging class have been used ubiquitously in commerce since the 1960s, and health effects were first uncovered in the 1970s, there continues to be no Federally promulgated drinking water and clean-up rules around this class of chemicals. Despite this, more than a dozen cases have ensued involving PFASs and specifically Perfluorooctane sulfonate (PFOS), Perfluorooctanoic acid (PFOA), and most recently GenX.
 
Initial litigation focus was on the manufacturers themselves, primarily DuPont (and spin-off Chemours) and 3M and primarily on PFOS and/or PFOA. For example, the first class-action lawsuit for PFASs was filed in 2004 (Leach, et al v. E. I. DuPont deNemours and Co.) on behalf of West Virginia residents across six different water districts exposed to PFOA releases from DuPont's Washington Works plant in Parkersburg, WV. A settlement was reached with DuPont in the original (Leach v. E. I. DuPont) class action lawsuit. The entire settlement was approved in February 2005 with $70 million for a health and education project, the installation of state-of-the-art water treatment technology for the six identified water districts and private well, $30 million to fund a PFOA health study, and funds available (up to $235 million) for the medical monitoring of class members. In the last few years, DuPont and Chemours have agreed to pay hundreds of millions of dollars to settle lawsuits related to PFOA, including a $670.7 million global settlement last February to settle 3,550 lawsuits in multidistrict litigation centered in Ohio.
 
Issues at the Washington Works plant appear to be continuing despite the nearly two decades of litigation. Earlier this month, Ohio's attorney general sued DuPont and its spin-off Chemours Co. for restitution and damages resulting from PFOA at the Washington Works plant in Parkersburg, WV. The Attorney General is seeking relief including 1) A declaration of DuPont’s duty to compensate Ohio for expenses related to the contamination, 2) Damages for injury to Ohio’s natural resources, including the economic impact to the state and its residents, 3) An award of present and future costs to clean up PFOA contamination, and 4) Restitution damages for profits DuPont obtained through the conduct.
 
In more recent years, the umbrella of litigation has grown past the manufacturer to include water utilities, product users, and secondary manufacturing applications. For example, in 2017, Tennessee Riverkeeper filed a lawsuit under the federal Resource Conservation and Recovery Act, against 3M, BFI Waste Systems of Alabama, the city of Decatur, Morgan County and other entities to clean up landfills and wastewater treatment plants that Tennessee Riverkeeper states are still releasing PFOS and PFOA into the Tennessee River and local groundwater. In another example, a class-action lawsuit was filed against Saint-Gobain Performance Plastics and Honeywell International Inc. on behalf of residents in Hoosick Falls, N.Y., after discovering they were drinking water containing high levels of PFOA. Similar cases were filed in New Hampshire and Vermont against Saint-Gobain. The plant does not manufacture PFOA but rather applies it to fabric to make coated fabrics for application in sporting complexes, hazmat suits for the first responder, and shelters for mobile medical units. In a final example, a class action lawsuit was filed last October against five manufacturers of aqueous firefighting foams ("AFFF") containing PFOS and PFOA for the contamination of the groundwater relied upon by the residents of Yaphank, New York. The class action complaint was filed in the Supreme Court for the State of New York, Suffolk County, and names 3M, and several foam manufacturers (Tyco Fire Products L.P., Buckeye Fire Protection Co., National Foam, Chemguard) as Defendants. As cases continue to develop around AFFF, some have taken a proactive approach to address potential environmental and human health risks. The US Air Force as an example has already spent $210 million dollars on PFOS/PFOA actions to date to respond to AFFF-contaminated drinking water at 19 installations across the country. A total of 203 installations have been evaluated and 190 of them are expected to require further site inspections. 
 
The latest trend in PFAS litigation is currently towards other chemicals in the emerging contaminant class. For example, late last month, lawyers filed a new class action lawsuit against DuPont and Chemours claiming that the two firms contaminated the Cape Fear River in North Carolina with PFASs. The filing consolidates three class action suits filed since October 2017 by lawyers representing thousands of people who claim they are ill or could get ill because they drank water from the Cape Fear River and from wells surrounding the plant, now run by DuPont spin-off Chemours. The suit seeks funding for an epidemiological study to gauge the impact of PFOA, other polyfluoroalkyl substances, and GenX—which Chemours considers a safer alternative to PFOA — on residents along the Cape Fear River. It also seeks undetermined compensatory and punitive damages for illness, reduced property value, and the cost of water filtration
 
As hundreds of sites are identified across the United States, liability associated with the environmental and health implications of PFASs continues to grow exponentially. As science around the emerging contaminant class develops, additional PFASs become scrutinized and state regulatory requirements expand to accommodate them. Litigation associated with PFASs is expected to continue for years to come. 
 

—Shalene Thomas (Derouard), PMP is the Emerging Contaminants Program Manager with Amec Foster Wheeler Environment & Infrastructure Inc.  (Note, effective Oct. 9, 2017, Amec Foster Wheeler joined Wood, PLC).  Shalene can be contacted by email at Shalene.Thomas@woodplc.com or by phone at (612) 252-3697.

—Brad Glisson, CHMM is a Senior Environmental Scientist in the Amec Foster Wheeler’s Nashville, Tennessee office.  He can be contacted at brad.glisson@woodplc.com and (615) 333-0630.
 
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