“Forever Chemicals:” A Growing Target For Litigation And Legislation

PFAS, per- and polyfluoroalkyl substances, have been under increased scrutiny in recent years. These chemicals are broadly used in a variety of nonstick products, such as raincoats, cookware and firefighting foam. They are considered "forever chemicals" because of the fact that they virtually never biodegrade in the environment or in the human body, with 99 percent of those tested found to have some level of PFAS in their body. Moreover, there is a growing body of research linking exposure to these chemicals to negative health outcomes, such as cancer. Moreover, multiple studies over the last several years have found that drinking water in dozens of cities is contaminated with some level of PFAS.

Litigation

Given the above, over the last several years, there has been a substantial increase in the number of cases, typically class actions, brought regarding the injuries or potential injuries caused by excessive PFAS. Multiple courts across the country have granted class certification in actions relating to PFAS and have denied company’s motions for summary judgment, dramatically increasing the risk for all defendants involved. One judge wrote, “ssociety has a reasonable expectation that manufacturers avoid contaminating the surrounding environment, an expectation that extends to the pollution of an area’s water supply.”

Given the broad spread of these chemicals, the claims can very quickly reach substantial sums of money. As an example, in 2017 DuPont settled 3,550 lawsuits in a multidistrict litigation for $670 million.

Action in Congress

In January 2020, the U.S. House of Representatives passed, 247 to 159, a bill that would require the EPA to set a mandatory drinking water standard for PFAS. The EPA currently recommends water contain no more than 70 parts per trillion of PFAS, but the House and public health groups say the agency needs an actual requirement -- one that will likely need to be below that level to protect public health. The bill also includes a number of other measures that would further regulate PFAS, including requiring PFAS to be covered under the hazardous waste cleanup law; imposing a five-year moratorium on the development of new PFAS chemicals; spelling out new regulations for production and cleanup of such toxic chemicals; requiring the EPA to regulate PFAS air pollution under the Clean Air Act; and outlining proper disposal for PFAS chemicals.