Trial Magazine

Access to safe, clean water is reaching a crisis point in the United States. Along with headline-making lead contamination, many other chemicals and chemical families are also making drinking water unsafe for human consumption, leading to adverse health outcomes and damaging natural resources and the environment.

Man-made chemicals called per- and polyfluoroalkyl substances (PFAS) are the subject of emerging litigation and attention nationwide.¹ These chemicals number in the thousands and include PFOA and PFOS, which have been in use since the 1940s, and GenX, which was introduced as a “safer alternative” a decade ago.

PFAS can be found all around us, including in food wrappers, household nonstick products, and stain- or water-repellant fabrics. PFAS also can be found near specific facilities—not just PFAS manufacturing sites but also industrial sites that use PFAS in different applications, such as chemical processing; landfills; and firefighting training facilities, such as airports and military bases. And PFAS have found their way into drinking water and living organisms—including humans.

Known as “forever chemicals,”² PFAS are so widespread because they persist in the environment and in the human body by accumulating over time and not breaking down. Evidence exists that PFAS exposure can lead to adverse health outcomes, including cancer, reproductive problems, weakened childhood immunity, and low birth weight.³

As concerns over PFAS contamination grow, lawmakers need to set enforceable standards for PFAS in water supplies and mandate cleanup. In the meantime, state and local governments, municipal water suppliers, private well users, and citizens are exploring ways to hold manufacturers and other potentially responsible parties accountable.

A Patchwork of Federal Laws

While current federal statutes do not explicitly regulate PFAS, steps are being taken to do so.⁴ The EPA is currently working on a PFAS Action Plan.⁵ It recently proposed regulating PFOA and PFOS under the Safe Drinking Water Act—the primary federal law regulating contaminants in drinking water and its sources—and is seeking public comments on the proposed regulation.⁶

However, regulation in this area moves slowly.⁷ PFAS—and their dangers—have been on the EPA’s radar for more than a decade. In 2009, the agency published provisional health advisories for PFOA and PFOS based on the evidence available at that time. In 2016, it replaced the 2009 advisories with new, lifetime health advisories regarding the combined concentrations of PFOA and PFOS in drinking water.⁸ The EPA recognizes that this advisory offers marginal protection.⁹

A toxic substance must be on the EPA’s Contaminant Candidate List before it will issue an enforceable standard. PFOA and PFOS have been on the list since 2009, yet no standard has been set. In the meantime, existing federal statutes may provide an avenue for the control and cleanup of chemical compounds like PFAS that are not specifically enumerated and regulated.

CERCLA. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) addresses the handling of uncontrolled or abandoned hazardous waste sites, accidents, spills, and other releases of pollutants or contaminants.¹⁰ It provides for a federal “Superfund” to clean up, contain, or remove pollutants and hazardous materials. Through CERCLA, the EPA can hold parties—including current or former site owners or operators and those involved with transporting and disposing of hazardous substances—responsible for violations and require their participation in cleanup efforts. 

Under CERCLA’s programs, the majority of cleanup and remediation efforts are paid for by responsible parties, but the law also gives the EPA the ability to clean up “orphaned” sites when a responsible party cannot be located or brought to task. Currently, PFAS have not been designated as “hazardous substances” under CERCLA; however, they are considered “pollutants or contaminants.”¹¹ As such, there is a much higher bar to recovery.

For example, when a hazardous substance is released over a certain threshold, it automatically triggers an investigation and potential cleanup. But when a substance is merely a pollutant or contaminant, it must be shown to pose an “imminent and substantial danger” to public health or the environment before those requirements are triggered. Further, the EPA has discretion over whether to pursue cleanup of pollutants and contaminants.¹²

Accordingly, while CERCLA provides a possible remedy, designating PFAS as hazardous substances would provide further protection. CERCLA’s citizen suit provision also allows private actions to abate a release or threatened release of PFAS, but currently only when the bar is met of showing an imminent and substantial danger to public health or the environment.

RCRA. The Resource Conservation and Recovery Act (RCRA) gives the EPA authority to control hazardous solid waste throughout its life cycle, including its generation, transportation, treatment, storage, and disposal.¹³ PFAS-containing “sludge” or “biosolids” that have been treated at a water treatment facility often are spread on agricultural land or otherwise returned to the environment.¹⁴ These sludges and biosolids meet RCRA’s definition of solid waste—if PFAS are designated as substances subject to the various federal laws, RCRA will provide another tool to address contamination.¹⁵

States Leading the Way

Until the federal gaps are adequately filled, individuals, municipalities, and states are pursuing other avenues to address PFAS contamination through state statutes and common law.

New state requirements. States have stepped in to set standards for PFAS, particularly in drinking water. For example, in July 2019, New Hampshire began requiring local water systems, landfills, and wastewater treatment plants to test and treat for PFAS.¹⁶ New Hampshire,¹⁷ New Jersey,¹⁸ and New York¹⁹ have implemented or proposed maximum contaminant levels for PFAS. Several other states including California, Massachusetts, Michigan, and Vermont have committed to establishing standards.²⁰

State statutes. Most states have  environmental laws that mirror federal law or, in some cases, provide materially more protection. Even if these laws do not specifically mention PFAS, they still may provide a means of holding manufacturers accountable for water system contamination. For example, approximately half of all states have regulatory protections that apply to at least some waters that are either not covered, or may not be covered, by the federal Clean Water Act.

State common law claims. These claims often provide more flexibility to plaintiffs, particularly when specific PFAS standards do not exist. They include products liability claims for both defective design and failure to warn and tort claims such as negligence, trespass, and various forms of nuisance. Common law claims can be brought for personal injury and injury to property against manufacturers, site operators, and others in the PFAS life cycle, including those that transport and dispose of those chemicals.

Products liability claims involve unique challenges, including having to rely on in-depth expert testimony. But personal injury and property claims follow proofs that are familiar to most plaintiff lawyers. In Illinois, for example, a private nuisance is a negligent, intentional, or unreasonable invasion of another’s interest in the private use and enjoyment of his or her land.²¹ In the PFAS context, a plaintiff would need to show the extent and nature of the harm caused by PFAS contamination—including harm to humans, nature and wildlife, or farm animals—or statistical and survey evidence such as perceived loss in real estate values.

Courts have held that companies have a duty not to contaminate the environment, which can form the basis of a negligence action when breach of that duty proximately causes the plaintiff’s injuries.²²

Litigation. Lawsuits have been consolidated in federal multidistrict litigation (MDL) in South Carolina to address aqueous film-forming foams (AFFF) that allegedly caused the release of PFAS into drinking water sources. Many of these cases were removed to federal court and transferred to the MDL based on the defendants’ assertion of a federal defense that the AFFF at issue was allegedly made for and sold to the federal government.²³

A nationwide class action against PFAS manufacturers requests medical monitoring and other relief for all U.S. residents with a detectable level of PFAS in their blood.²⁴ And recently, the District of Vermont certified a property class and a medical monitoring class for people within a “zone of contamination” near a plant that used Teflon coating containing PFOA.²⁵

Several states also have filed lawsuits on behalf of citizens with PFAS-contaminated water supplies, asserting a range of statutory and common law claims. In 2010, Minnesota sued 3M to address contaminated water and land stemming from four sites in the southeast Twin Cities metropolitan area. The case was settled for $850 million and sets two funding priorities: ensuring safe drinking water and enhancing natural resources.²⁶ In 2019, New Hampshire, New Jersey, New York, and Vermont each announced similar lawsuits against PFAS manufacturers and firefighting foam retailers, seeking compensation for contamination.²⁷

Other states are investigating PFAS contamination and looking for ways to hold manufacturers, site operators, and other potential parties accountable. Michigan sued DuPont, 3M, and 15 other PFAS manufacturers in January, seeking relief based on statewide contamination.²⁸ This is especially noteworthy because Michigan is the state with the most identified locations affected by PFAS contamination.²⁹

Challenges

Plaintiffs are likely to encounter several obstacles when bringing state law claims, and careful pleading and expert preparation can help overcome them.

Removal to federal court. A key challenge is how to file and remain in state court, which is preferable because of the discretion and flexibility of state courts—and judges who may be more sympathetic to issues affecting drinking water in their communities. Suits in federal court also are more likely to be transferred and consolidated within an MDL or with other actions.

For example, in the AFFF litigation, even when plaintiffs allege only state law causes of action, the defendant PFAS manufacturers have removed the cases to federal court based on the government contractor defense when there are grounds to believe that AFFF was purchased by the government for use at military locations and training centers pursuant to specifications formulated by the military. Although AFFF was also used by parties other than the federal government—including private industry and local governments—when allegations include military and non-military use, removal is likely.

The defendants in those actions argue that government immunity extends to contractors when they make products for the government, at the government’s direction; when the government set precise specifications for the product in question; and when the manufacturers created the product in conformance with those specifications.³⁰

Plaintiffs have good arguments to defeat this defense on the merits. For example, one element of the government contractor defense is whether the U.S. government approved “reasonably precise specifications” for the AFFF it ordered.³¹ Plaintiffs can argue that this requirement is not met because the government ordered an “off-the-shelf” AFFF, was not closely involved in formulating the product, and did not have a significant interest in the alleged design defect. They may further argue that the military specifications did not define the content or requirements of the product, only its functionality, leaving the manufacturer to devise the precise formula and fill in the details. However, because defendants need to raise only a “colorable” federal defense, plaintiffs have been unsuccessful remanding to state court.

Statutes of limitations. Due to the difficulty of detecting discharges of unregulated chemicals and identifying the source of contamination, as well as the long latency period for PFAS exposure symptoms, statutes of limitations often arguably run before violations are discovered. But plaintiffs may be able to rely on the discovery rule and the continuing violation doctrine to bring claims that might otherwise be time-barred.

Under the discovery rule, a limitations period begins to run when plaintiffs knew or should have known about the facts giving rise to a violation, not at the time of a discharge or other harm.³² Instead of the statute beginning to run when PFAS was discharged into a waterway or left in a landfill with other household waste, it arguably would begin to run when adverse health effects were discovered and testing confirmed the discharge.

And although some states do not apply the discovery rule,³³ CERCLA effectively extends its discovery rule to actions brought under state law for personal injury or property damages. Specifically, in an action filed under state law for personal injury or property damage resulting from exposure to hazardous substances, pollutants, or contaminants, if the applicable state law statute of limitations begins to run earlier than the “federally required commencement date,” then the federal commencement date will apply.³⁴

The continuing violation doctrine allows for recovery by treating individual acts that otherwise would be time-barred as part of a pattern of violations that constitute a single, ongoing violation. For example, in a case involving similar pollutant discharges that occurred before and after the complaint was filed, the Third Circuit held that when there is at least one pre-complaint violation along with post-complaint violations, the early violations are continuous or intermittent such that they will be viewed as part of the same pattern.³⁵

Identifying contamination sources and pathways. Because violations in these cases are often difficult to discover, quantify, and define, source and causation almost certainly will be raised as defenses. Expert testimony is almost universally required on these issues:

• the sources of contamination (whether there is one source, or whether various defendants’ PFAS have mixed in the environment)
• the pathways through which PFAS entered the environment and how they traveled
• whether end users rather than manufacturers caused the harm by improperly using and disposing of PFAS.

In the coming years, it is likely that we will see new federal and state requirements that make it easier to hold manufacturers and others accountable for PFAS contamination. But while that develops, current strategies and efforts to address contamination now remain critical in the fight for clean water.

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Adam J. Levitt, Amy E. Keller, Daniel R. Flynn, Laura E. Reasons, and Adam Prom are attorneys at DiCello Levitt Gutzler in Chicago. They can be reached at alevitt@dicellolevitt.com, akeller@dicellolevitt.com, dflynn@dicellolevitt.com, lreasons@dicellolevitt.com, and aprom@dicellolevitt.com.

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Notes

1. See, e.g., Paula Gardner, Michigan Has More PFAS Sites Than Other States. There’s a Reason, MLive.com (Aug. 25, 2019), https://tinyurl.com/uzhzqsl; Anna M. Phillips, Here’s What You Can (And Can’t) Do About PFAS Contamination in Your Water, L.A. Times (Oct. 23, 2019), https://tinyurl.com/uwklhjj; Jennifer Bjorhus, Minnesota Expands Hunt for PFAS Chemical Contamination in Water, Star Tribune (Nov. 21, 2019), https://tinyurl.com/w5wh8t3; Pippa Stevens, ‘Dark Waters’ Movie Poses Risk for 3M, Analyst Says, CNBC (Nov. 20, 2019), https://tinyurl.com/r3vxomb.
2. See What Are PFAS Chemicals?, Envtl. Working Grp., https://tinyurl.com/t6bzo24. 
3. See Basic Information on PFAS, U.S. Envtl. Prot. Agency, https://tinyurl.com/yagg34hh.
4. Brian Henthorn & Christopher Loos, PFAS Rolling Into Regulation, Nat’l Law Rev. (Nov. 4, 2019), https://tinyurl.com/uzzs69h.
5. EPA Moves Forward on Key Drinking Water Priority Under PFAS Action Plan, U.S. Envtl. Prot. Agency (Dec. 4, 2019), https://tinyurl.com/vcgcwup. 
6. Id. 
7. See Erik D. Olson, The Broken Safe Drinking Water Act Won’t Fix the PFAS Crisis, Natural Res. Def. Council (Sept. 12, 2019), https://tinyurl.com/rjv88kd; EPA Announces Proposed Decision to Regulate PFOA and PFOS in Drinking Water, U.S. Envtl. Prot. Agency (Feb. 20, 2020), https://tinyurl.com/v6m2ojm.
8. Fact Sheet: PFOA & PFOS Drinking Water Health Advisories, U.S. Envtl. Prot. Agency (Nov. 2016), https://tinyurl.com/hq62snd.
9. Id.
10. 42 U.S.C. §§9601–9675 (2018). See Superfund: CERCLA Overview, U.S. Envtl. Prot. Agency, https://tinyurl.com/jzugaqk.
11. See Melanie Benesh, It’s Time to Designate PFAS a “Hazardous Substance,” U.S. Envtl. Working Grp. (July 3, 2019), https://tinyurl.com/s25hnor. The “PFAS Action Act of 2019” (H.R. 535) is currently in Congress. 
12. Id. 
13. 42 U.S.C. §6901 (2018); See Summary of the Resource Conservation and Recovery Act, U.S. Envtl. Prot. Agency, https://tinyurl.com/zmksxxb; EPA History: Resource Conservation and Recovery Act, U.S. Envtl. Prot. Agency, https://tinyurl.com/votz6hy.
14. See Tom Perkins, Biosolids: Mix Human Waste With Toxic Chemicals, Then Spread on Crops, The Guardian (Oct. 5, 2019), https://tinyurl.com/y5udac5q.
15. Criteria for the Definition of Solid Waste and Solid and Hazardous Waste Exclusions, U.S. Envtl. Prot. Agency, https://tinyurl.com/r9uvr4u. See also Petition for Rulemaking: RCRA Regulation of Wastes Containing Long-Chain PFAAs and GenX Chemicals, Berkeley Law Envtl. Law Clinic (Jan. 15, 2020), https://tinyurl.com/wpp5oon.
16. Annie Ropeik, N.H. Approves Unprecedented Limits for PFAS Chemicals in Drinking Water, N.H. Public Radio (July 18, 2019), https://tinyurl.com/u9slluj.
17. Id.
18. Notice of Rule Proposal, N.J. Dep’t of Envtl. Prot. (Apr. 1, 2019), https://www.nj.gov/dep/rules/notices/20190401a.html.
19. Per- and Polyfluoroalkyl Substances (PFAS), N.Y. State Dep’t of Envtl. Conservation, https://www.dec.ny.gov/chemical/108831.html.
20. Henthorn & Loos, supra note 4; Michigan Moves Forward on Drinking Water Standards for PFAS, Mich. Dept. of Env’t., Great Lakes, & Energy (Oct. 11, 2019), https://tinyurl.com/v8uql73.
21. Carroll v. Hurst, 431 N.E.2d 1344, 1349 (Ill. App. Ct. 1982).
22. E.g., NutraSweet Co. v. X-L Eng’g Corp., 933 F. Supp. 1409 (N.D. Ill. 1996).
23. Transfer Order, In re Aqueous Film-Forming Foams Prods. Liab. Litig., MDL No. 2873 (D.S.C. Apr. 2, 2019).  
24. Hardwick v. 3M, No. 18-1185 (S.D. Ohio).  
25. Sullivan v. St. Gobain Performance Plastics Corp., No. 16-cv-000125, slip op. at 5, n.1, (D. Vt. Aug. 23, 2019). 
26. See the settlements at Minnesota 3M PFC Settlement, https://3msettlement.state.mn.us/.
27. See State of New Hampshire Announces Historic Lawsuit, Actions to Protect Clean Drinking Water in New Hampshire, N.H. Gov. (May 29, 2019), https://tinyurl.com/td4mfwb; Complaint and Jury Trial Demand, Grewal v. The 3M Co., (N.J. Super. Ct. May 14, 2019) (MER-L-000953-19), http://src.bna.com/Ib6; Jonathan Stempel, New York Sues 3M, Five Others Over Toxic Chemical Contamination, Reuters (June 20, 2018), https://tinyurl.com/vxo4flv; Vermont Files Suit Against Manufacturers of PFAS Chemicals to Protect Drinking Water and Natural Resources, Vt. Att’y Gen. (June 27, 2019), https://tinyurl.com/ttzpbgu.
28. The Michigan attorney general selected a litigation team made up of the authors of this article and two other law firms. See Michigan Files Lawsuit Against 3M, DuPont and Others for PFAS Contamination, Mich. Dep’t of Env’t., Great Lakes, & Energy (Jan. 14, 2020), https://tinyurl.com/tlszkjn.
29. Gardner, supra note 1.
30. E.g., Ayo v. 3M Co., 2018 WL 4781145 (E.D.N.Y. Sept. 30, 2018); In re Aqueous Film-Forming Foams Prods. Liab. Litig., 2019 WL 2807266 (D.S.C. May 24, 2019).
31. See Ammend v. BioPort, Inc., 2006 WL 1050509, at *4 (W.D. Mich. Apr. 19, 2006) (citing Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988)).
32. See, e.g., Cooper Indus., LLC v. City of S. Bend, 899 N.E.2d 1274, 1279–80 (Ind. 2009); Wehling v. Citizens Nat’l Bank, 586 N.E.2d 840 (Ind. 1992).
33. See, e.g., Mich. Comp. Laws §600.5813 (1961), §§324.1701–324.1706 (1995), §§324.3101–324.3134 (2015); Trentadue v. Buckler Automatic Lawn Sprinkler Co., 738 N.W.2d 664 (Mich. 2007).  
34. 42 U.S.C. §§9658(a)(1) & 9658(b)(4)(A).
35. Natural Res. Def. Council, Inc. v. Texaco Ref. & Mktg., Inc., 2 F.3d 493, 501 (3d Cir. 1993).