It took one lawsuit to expose the toxicity of PFAS. And more than two decades of litigation to begin to address the harm it has caused.
By Michael DiGiannantonio
In 1999, a farmer in West Virginia, Wilbur Tennant, filed the first lawsuit against DuPont for contaminating water with perfluorooctanoic acid (PFOA), part of the per- and polyfluoroalkyl substance (PFAS) family of around 6,000 manmade chemicals. Tennant saw his cattle suffer numerous health issues, such as stillborns, birth defects, tumors, and black teeth. He lost over 100 cattle to cruel deaths. The cattle drink water downstream from an unlined landfill where DuPont dumped 7,100 tons of PFOA sludge during the late 1980s. By the early 1990s, DuPont tested the creek water and found it contained an extraordinarily high concentration of PFOA. But it did not disclose this fact to Tennant, despite its knowledge of the chemical's toxicity, and instead blamed the farmer for poor husbandry of his cows.
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 out 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. To understand why so many water providers, property owners, individuals and governments are suing PFAS manufacturers, one needs to know the prevalence of these chemicals, and the evolution of such litigation within the context of ever-increasing state and federal regulation.
Manufacturers' Early Discovery of PFAS's Toxicity Despite Little Regulation
3M Corporation invented PFOA in 1947 with several other chemical compounds referred to by the company as “C8” because it has eight carbons tied to fluorine. This family of manmade chemicals is known today as PFAS, or “forever chemicals” as they do not break down in the environment. They are found in certain fire retardants, as well as stain-, water- and grease-resistant products. DuPont started purchasing these chemicals in 1951 to use in the manufacturing of its own products, including Teflon, a brand best known for use in non-stick cookware.
In 1961, DuPont scientists found that PFAS could increase liver size in rats and rabbits. The company later discovered high concentrations of PFOA in its factory workers' blood in the 1970s. It started monitoring workers and noticed PFOA was bioaccumulating in their blood, meaning the body's tissue absorbs the substance faster than it can be eliminated.
The US Environmental Protection Agency (EPA) was formed in 1970 and began creating and enforcing environmental regulations shortly thereafter. At the time of its creation, the EPA did not know about the dangers of PFAS and consequently did not initially create any PFAS-specific regulations. However, under the Toxic Substances Control Act, any manufacturer of a chemical that finds evidence of substantial risk to human health or the environment from such chemicals was required to report it to the EPA for testing. This didn't happen.
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. In 1984, DuPont tested public water supplies for PFOA near its West Virginia plant and found it in several communities in West Virginia and Ohio that were drawing water from the Ohio River or had well fields impacted by air emissions from the plant. The company's scientists were the first to set their own safety limit of 1 part per billion (ppb) or 1,000 parts per trillion (ppt) for PFOA in community drinking water in 1988 but found levels three to five times higher in surrounding water sources. By the early 1990s, two company cancer studies had been completed, confirming that PFOA caused cancer in the liver, pancreas, and testicles of rats.
It is well documented that the manufacturers knew of the dangers of PFOA but did not disclose this to the EPA, or their workers, or the surrounding public when they knew they were at risk of exposure. Before Tennant's lawsuit, the knowledge of PFOA, its toxicity, and prevalence, lay solely with the manufacturers and their scientists.
The Dangers of PFAS Are Exposed, Leading to Litigation and More Stringent Regulation.
DuPont settled the case with Tennant as all these facts came to light. Robert Bilott, attorney for Tennant, recognized a huge public health threat as people were exposed to PFAS chemicals in everyday products, and the chemicals had yet to be regulated. In March of 2001, Bilott sent a letter to the EPA, US Attorney General and numerous federal agencies revealing the findings of the case, warning of a potential public health emergency and urging regulators to act with haste.
In the summer of 2001, a class-action lawsuit on behalf of the tens of thousands of people with drinking water contaminated with PFOA from DuPont's Teflon plant in West Virginia was filed by Bilott and his team. A year later the EPA initiated a priority review of C8 and indicated a potential ban based on what it was seeing. The following year, the EPA released a first draft risk assessment under TSCA and noted its concerns that PFOA was prevalent throughout the country.
The EPA sued DuPont in 2004 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. In 2007 3M paid a $1.5 million penalty for having held certain PFAS information from EPA. DuPont also settled the class action and agreed to pay settlement benefits in excess of $300 million, including a commitment to pay up to $235 million for medical monitoring of the approximately 70,000 class members, if a panel of three independent epidemiologists established under the settlement (the “C8 Science Panel”) confirmed probable links between PFOA exposure in the class members' water and human disease.
In 2006, the newly formed C8 Science Panel began its work to confirm the extent of probable links between PFOA exposure and disease, relying on blood samples and other data collected from the almost 70,000 class members participating in the studies. Those studies and the C8 Science Panel work stretched out over the next seven years. In the meantime, the EPA essentially took the position that it would wait for the results of this independent study before taking any further regulatory steps.
Under the 2004 class action settlement, DuPont was required to pay for the design, installation, and maintenance of state-of-the-art water filtration systems for each of the six public water supplies and dozens of private well owners in West Virginia and Ohio with more than 0.05 ppb (50 ppt) PFOA in their water. In 2006, as the C8 Science Panel work was underway, DuPont separately agreed with EPA in a Consent Agreement specific to the Teflon plant in West Virginia to pay for water filtration systems for any other public or private water system surrounding that plant that had PFOA levels higher than 0.5 ppb (500 ppt). The company also agreed to phase out further manufacture or use of PFOA, nationwide, by 2015. At the same time, the company started developing replacement chemicals that have varying carbons like Gen X, which is a C6.
In 2009, EPA released it first short-term, nationwide, Provisional Health Advisory for PFOA in drinking water of 0.4ppb (400ppt) in response to agricultural sludge contamination in Alabama. In 2012, the independent science panel finally completed its work, confirming probable links between PFOA exposure in drinking water and kidney cancer, testicular cancer, thyroid disease, high cholesterol, ulcerative colitis and preeclampsia.
By 2013 there was a multidistrict litigation (MDL) comprised of approximately 3,500 personal injury cases against DuPont for the six diseases linked to PFOA exposure. MDLs are used to coordinate complex litigation filed in multiple federal district courts by similar parties. By consolidating the discovery and pretrial motions, both sides save time and money. After losing the bellwether trials, DuPont eventually agreed to settle all the approximately 3,500 then-pending cases for around $671 million in 2017.
Meanwhile, in 2016 the EPA announced its first long-term Provisional Health Advisory for PFOA and PFOS at 70 ppt (0.07 ppb) individually or combined. Some watchdog and scientific groups thought this was too high, including the Environmental Working Group (advising 1 ppt) and National Resource Defense Council (advising 2 ppt).
The 2016 health advisory resulted in an explosion of testing. Many states including Michigan, New Jersey, Ohio, Massachusetts were finding these chemicals in their water and in some cases above the federal guideline. New Jersey became the first state to adopt an MCL for PFAS in drinking water in 2018. For PFOA the MCL was set at 14 ppt (0.014 ppb) and PFOS at 13 ppt (0.013 ppb) – significantly lower than the EPA's health advisory. More states followed suit and set their own PFAS MCLs, with most well below the EPA 70 ppt guideline.
A number of plaintiffs filed cases against various aqueous film-forming foam (AFFF) manufacturers across the country, alleging PFOA water and ground contamination. In 2019 these cases were consolidated into another multidistrict litigation (MDL-2873). Plaintiffs include water providers, property owners, personal injury plaintiffs, and sovereigns. The water providers have been selected as the first group of bellwether cases to proceed to trial, which will occur before the AFFF MDL court in the United States District Court of South Carolina in 2023.
The Current State of PFAS Litigation.
A few years ago, a group of law firms formed a specialized consortium* to help water utilities and other governmental entities seek compensation from manufacturers for the damage caused by the contamination of their water sources with PFAS. The group has hundreds of thousands of internal documents demonstrating manufacturer liability.
In 2021, the EPA released its latest strategic road map of commitments and actions it plans to take over the next three years to address PFAS. Under the fifth Unregulated Contaminant Monitoring Rule (UCMR 5), the EPA identified 29 PFAS chemicals for sample collection and analysis between 2023-2025. In the meantime, 15 more states set their own MCLs for various PFAS substances and at levels lower than the 2016 health advisory.
In January 2022, the EPA added four new PFAS chemicals to the Toxic Release Industry (TRI) list. In May 2022, the EPA added GenX chemicals, PFOS, PFOA, PFNA, and PFHxS to its list of regional screening and removal management levels. As more chemicals are added to these lists, water suppliers are required to do more testing and it is likely that these toxic chemicals will again be more prevalent than once thought, based on their use in everyday products. Compelling evidence of this can be seen in the number of new plaintiffs continuing to join the PFOA MDL-2873. As of March, there were more than 2,000 plaintiffs.
On June 15, 2022, the EPA slashed its health advisory for PFOA by more than 17,000 times to 0.004 ppt and 3,500 times for PFOS to 0.02 ppt. With no previous advisories, the EPA also released a health advisory for GenX at 10 ppt and PFBS at 2,000 ppt.
In Conclusion
What started as an isolated incident on a farm in West Virginia has exploded into a much larger problem found throughout the entire world. The public's understanding of the dangers and prevalence of PFAS has grown over the two decades since the first lawsuit revealed the toxicity of PFOA.
While there is still no national MCL on any PFAS substance, the EPA's PFAS strategic roadmap is a positive indication that there will soon be. The number of resources required for a thorough investigation of all the compounds is extensive. To amplify the problem, the manufacturers continue to develop new alternatives that could still pose a health risk and take a long time to investigate.
Regulators and lawmakers continue to explore and implement solutions to protect the public. Meanwhile, water utilities are faced with shutting down contaminated sources, purchasing alternative clean water if needed, increasing monitoring and reporting, and planning new treatment plants or upgrades to existing plants to remove these chemicals. In light of information uncovered through litigation, many of these utilities and municipalities choose to file lawsuits and hold the polluters accountable, rather than pursue government funding from tax dollars. With future generations' health and safety hanging in the balance, it only makes sense to pursue every option available to meet the challenge.
*The Consortium includes Douglas & London, PC (New York, NY); Kelley Drye & Warren, LLP (Houston, TX; San Diego, CA); Levin, Papantonio, Thomas, Mitchell, Rafferty, & Proctor, PA (Pensacola, FL); SL Environmental Law Group (San Francisco, CA, Concord, NH); Taft, Stettinius & Hollister, LLP (Cincinnati, OH) and Kennedy & Madonna, LLP (Hurley, NY).
Michael DiGiannantonio is an attorney at SL Environmental Law Group, focusing on protecting the public and environment from corporate polluters. DiGiannantonio is a former senior enforcement counsel and a former federal law clerk and professor of legal writing. He is admitted to practice law in Illinois and Michigan, and his application to become a member of the California Bar is currently pending.
Repost: Water Finance & Management