As public education and concern about PFAS contamination continues to increase, it is also becoming clearer that the manufacturers of these chemicals knew for decades about the risks PFAS posed to human health and the environment. Litigation seeking to hold these manufacturers accountable has revealed the knowledge they had and withheld from the public; this, in turn, has led to further litigation as more people recognized the harm to which they had been unwittingly subjected.
The bad news is that more than half a century went by in which PFAS was used in manufactured products and made its way into water sources, plants, animals, and humans. We are now finding it in everything, a fact that water utilities specifically are beginning to uncover in droves. The good news is that there is precedent for how to handle PFAS contamination, and how to pursue PFAS remediation costs from manufacturers.
To understand why so many water providers, property owners, individuals and governments are suing manufacturers to recover the PFAS treatment costs, it’s helpful to know the history of manufacturer knowledge and the evolution of PFAS litigation within the context of ever-increasing state and federal PFAS regulation.
Manufacturers Knew the Risks
We now know that two corporations, 3M and DuPont, are responsible for PFAS contamination. They knew just how dangerous PFAS is well before the rest of us did. Let’s start at the beginning.
In 1947, 3M Corporation invented PFOA, part of the PFAS family of around 6,000 man-made “forever chemicals” found in stain-, water- and grease-resistant products. A few years later, DuPont started purchasing these chemicals to use in the manufacturing of its own products including Teflon, a brand best known for non-stick cookware.
In 1961, internal DuPont scientists found that PFAS could increase liver size in rats and rabbits. In 1981, 3M found that PFOA ingested by rats caused birth defects. Two of seven employees in DuPont’s Teflon division gave birth to children with eye defects. Jumping forward three years, DuPont tested public water supplies for PFOA near its West Virginia plant. The chemical was found within several communities in West Virginia and Ohio that were drawing water from the Ohio River or were impacted by air emissions from the plant.
In 1988, 3M scientists were the first to set their own safety limit of 1,000 parts per trillion (ppt) for PFOA in community drinking water, although levels three to five times higher than that were found in surrounding water sources. By the early 1990s, two internal 3M cancer studies had been completed, confirming that PFOA caused cancer in the liver, pancreas, and testicles of rats.
The U.S. Environmental Protection Agency (EPA) was formed in 1970, and the Toxic Substances Control Act (TSCA) was passed in 1976. Under TSCA, any manufacturer of a chemical that found evidence of substantial risk to human health or the environment from toxic chemicals was required to report it to the EPA for testing.
It is well documented that 3M and DuPont knew of the dangers of PFOA, but did not disclose this knowledge to the EPA, their workers, or the surrounding public who were at risk of exposure. Before the first PFAS lawsuit, knowledge of PFOA, its toxicity, and prevalence lay solely with the manufacturers and their scientists.
The First PFAS Lawsuit
During the 1980s, DuPont dumped over 7,000 tons of sludge containing PFOA into an unlined landfill next to a creek in West Virginia. By the early 1990s, DuPont had tested the creek water and found it contained an extraordinarily high concentration of PFOA.
Meanwhile, a farmer named Wilbur Tennant began noticing health issues in his cattle, who drank water that traveled downstream from the unlined landfill. Over 100 cattle prematurely died, while others suffered from stillborn, birth defects, tumors, and black teeth. DuPont had not disclosed the discovery of PFOA in the creek to Tennant, despite knowledge of the chemical’s toxicity. Instead, it blamed the farmer for the poor husbandry of his cows.
In 1999, attorney Robert Bilott filed the first lawsuit against DuPont for contaminating water with PFOA on behalf of Tennant. DuPont settled the case as the facts about how the corporation had not disclosed knowledge of PFOA concentrations and the danger it posed came to light.
In March of 2001, Bilott sent a letter to the EPA, US Attorney General and numerous federal agencies warning of a potential public health emergency and urging regulators to act with haste.
Tennant’s story is well documented in various media, including the motion picture, “Dark Waters,” and the book that inspired it, “Exposure,” as well as the documentary, “The Devil We Know.” What started as one man’s legal fight against a large corporation turned into the exposure of a full-blown public health emergency that has spawned hundreds of lawsuits across the country over the past two decades.
PFAS Litigation Gains Momentum
In the summer of 2001, Bilott and his team filed a class-action lawsuit on behalf of tens of thousands of people with drinking water contaminated with PFOA from DuPont’s Teflon plant in West Virginia. DuPont settled the class action in 2004 and agreed to pay $300 million in settlement benefits including the design, installation, and maintenance of state-of-the-art water filtration systems. This case continued the growing trend of plaintiffs turning to litigation as a possible avenue to recover significant costs from the PFAS manufacturers.
In 2004, the EPA sued DuPont because it withheld information revealing a substantial risk to human health and the environment based on the information DuPont’s own scientists had about PFOA toxicity and its presence in local drinking water supplies. The parties settled a year later for $16 million. Meanwhile, 3M paid a $1.5 million penalty in 2007 for having withheld certain PFAS information from the EPA.
In 2012, an independent science panel confirmed probable links between PFOA exposure in drinking water and kidney cancer, testicular cancer, thyroid disease, high cholesterol, ulcerative colitis and preeclampsia. By 2013, a multidistrict litigation (MDL) comprised of approximately 3,500 personal injury cases against DuPont for the six diseases linked to PFOA exposure was underway. After losing the first trials, DuPont eventually agreed to settle all of the pending cases for around $671 million in 2017.
A number of plaintiffs filed cases alleging PFOA water and ground contamination stemming at least in part from the use of aqueous film forming foam (AFFF) that were consolidated into another multidistrict litigation (MDL-2873) by 2019. The water provider plaintiffs have been selected as the first group of cases to go to trial in the United States District Court for the District of South Carolina in 2023.
More Utilities are Opting to Pursue PFAS Litigation
In the years since he took on Tennent’s case against DuPont, attorney Robert Billot has joined a PFAS team of five law firms, which includes SL Environmental Law Group. The PFAS team has the only lawyers in the country who have tried multiple PFOA cases successfully against 3M and Dupont, and has exclusive access to documents from the manufacturers demonstrating they knew PFAS was harmful and purposefully provided false information to the public about its dangers. These document shave been a key component of many of the ever-growing number of cases that continue to be filed seeking to hold polluters accountable for PFAS cleanup costs.
Tennent’s case, Bilott’s class action suit, the EPA’s litigation and multiple MDLs all demonstrate that gigantic corporations can be held responsible for polluting drinking water. Legal action is a popular choice, and for good reason – there is a history of success both with PFAS litigation and with water contamination litigation at large. Experienced PFAS litigators are not afraid taking on the manufacturers on behalf of water providers that have been sufficiently injured. To talk to a member of the PFAS team about your options, please contact us here.