PFAS litigation trends: The move to hold manufacturers accountable
The health effects from PFAS exposure are getting a lot of public attention as the EPA and states set limits on PFAS in drinking water. At the same time, manufacturers of products that contained PFAS have been attempting to evade responsibility for contaminating drinking water, even though there is evidence that they knew what they were doing – and did it anyway.
3M, one of these manufacturers, has claimed that the science on health effects of PFAS is overblown and that they are not responsible. However, two court rulings have rejected these claims on the grounds that 3M was well aware of the health risks and that water providers may have been injured by PFAS. This bodes well for water systems who are looking to hold 3M accountable.
Challenges to MCLs
In June 2022, the Environmental Protection Agency (EPA) announced new health advisories for PFOA and PFOS, two commonly found forms of PFAS, based on scientific evidence showing a link between negative health effects and exposure to these man-made substances in water at near-zero concentrations. EPA studies also indicate that children with levels of PFAS in their blood previously considered low were not responding to common vaccinations such as diphtheria and tetanus.
Health concerns over PFAS exposure are by no means new. In 2006, an independent science panel, which had spent six years studying the effects of PFOA, linked the chemical to kidney cancer, testicular cancer, thyroid disease, high cholesterol, ulcerative colitis, and preeclampsia. Going back even further, studies in the 1970s by DuPont, who used these chemicals in a variety of consumer and industrial products, indicated that PFOA was bioaccumulating in the blood of its factory workers, meaning their bodies’ tissue was absorbing the substance faster than it could be eliminated. Bioaccumulation of chemicals in the body is a significant risk factor for cancer and other chronic illnesses. To combat these risks from exposure, the EPA and many states are beginning to enact maximum contaminant levels (MCLs) for drinking water.
New York ruling
In June of 2022, the State of New York Supreme Court of the County of Albany rejected the effort by 3M to invalidate the New York Department of Health’s MCL of 10 parts per trillion for certain kinds of PFAS contamination in drinking water supplies. To put this MCL in context, New York’s is largely consistent with regulatory limits in other states. 3M argued the MCL was invalid because it had been enacted on insufficient science and was “tantamount to a regulatory guess.”
The court ruled 3M could not show an injury from setting this regulation, and that there was no additional potential liability because lawsuits on groundwater contamination can be filed even when an MCL is not present. This ruling reiterates that a water provider may be injured by PFAS and may bring a lawsuit against a manufacturer even if there is no state MCL.
A nationwide multidistrict litigation (MDL) over PFAS contamination, made up of over 2,500 cases, is making progress in a South Carolina federal district court.
In an effort to limit their liability, 3M and codefendants filed a motion for summary judgment arguing the “government contractor defense” provided them immunity. Specifically, Defendants argued the government's design specifications for AFFF, aqueous firefighting foam that commonly contained PFAS, meant they should not be liable for the harm caused by PFAS.
In response, Judge Richard Mark Gergel of the United States District Court for the District of South Carolina, who is overseeing the MDL, denied 3M’s attempt to evade liability for harm caused by PFAS because the manufacturer “had significantly greater knowledge than the government about the properties and risks associated with their products and knowingly withheld highly material information from the government.”
This ruling is an important step forward for all MDL plaintiffs towards holding PFAS manufacturers accountable for covering the billions of dollars required to remove PFAS from water systems.
Not too late to hold PFAS manufacturers responsible using litigation
Litigation over PFAS contamination is moving forward as demonstrated by the favorable rulings for water systems in New York and with regard to the MDL. It is not too late for systems that have PFAS in their water to file a lawsuit against the manufacturers of these chemicals; additional plaintiffs are still able to join the MDL.
SL Environmental Law, in partnership with four other firms, has extensive experience with PFAS litigation, has exclusive access to evidence from PFAS manufacturers, and has successfully tried cases against large corporations such as 3M. The firm has won cases on behalf of water systems with other contaminants using the same legal strategy, such as Sunny Slope Water Company and Rubidoux Community Services District (who has also joined the PFAS MDL).
SL helps water systems navigate all phases of litigation and has a proven track record of holding polluters accountable for the harm they caused and for the cost of treating the contaminated drinking water.
Water contamination settlements and court rulings across the country point in favor of water systems with PFAS and against corporate polluters. To understand more about your options for joining the MDL and holding manufacturers accountable, schedule a free consultation with the SL PFAS team.