PFAS and Emerging Contaminants
Kelley Drye is on the vanguard of legal issues related to per- and polyfluoroalkyl substances (PFAS). We have a preeminent team of attorneys dedicated to helping clients address PFAS contamination, and we are counsel in some of the biggest and most significant PFAS litigations in the country, for both public and private clients.
Kelley Drye represents numerous states, municipalities, and water districts, as well as private sector clients, in more than 20 state and federal litigations throughout the country involving environmental contamination by PFAS. This includes numerous claims related to the use of firefighting foam – aqueous film-forming foam (AFFF) – and other products that contain PFAS compounds.
Thousands of cases from across the nation involving AFFF claims, including cases brought by Kelley Drye’s clients, have been consolidated in a multi-district litigation in the U.S. District Court for the District of South Carolina (AFFF MDL), where Kelley Drye attorneys have been appointed to numerous positions on the Plaintiffs’ Executive Committee that leads the AFFF MDL, including serving on the Plaintiffs Executive Committee, chairing the States/Sovereigns Committee, co-chairing the Property Damage Committee, and serving on the Discovery Committee.
Kelley Drye attorneys bring decades of unmatched experience in complex environmental contamination and natural resource damages matters, including on behalf of states and private businesses, and are applying that experience to PFAS regulation and litigation. In addition to litigation services, Kelley Drye counsels clients with internal investigations into PFAS risks and liability, advises on how to mitigate those risks, and represents them in actions to recover costs they incur to address PFAS contamination.
Innocent customers and unwitting users of PFAS-containing products are already liable for PFAS investigation and remediation costs – including significant drinking water treatment costs – as “responsible parties” under several state environmental laws. Likewise, if and when the federal government designates PFAS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), companies that used PFAS – whether knowingly or not and without consideration of fault – may be strictly liable for cleanup costs at their own facilities and offsite disposal sites, as well as resulting injuries to natural resources and the costs to assess them. Our team is ready to assist businesses in connection with these potential liabilities arising under CERCLA and similar state laws, combining its years of experience in such matters with its unparalleled background in PFAS litigation and regulation.
In short, Kelley Drye is uniquely positioned to provide cutting-edge, yet cost-effective, legal services related to PFAS, through decades of experience and the most up-to-date knowledge of the shifting PFAS landscape.
PFAS belong to a class of man-made chemicals known as perfluorinated compounds. There are thousands of PFAS chemicals in use and in the environment today. These chemicals include perfluorooctane sulfonate (PFOS), perfluorooctanoic acid (PFOA), perfluorodecanoic acid (PFDA), perfluorononanoic acid (PFNA), perfluorobutanesulfonic acid (PFBS), perfluorohexanoic acid (PFHxA), perfluorohexanesulfonate (PFHxS), and HFPO dimer acid (GenX).
PFAS were originally developed in the 1940s, and put into large-scale manufacture and use by the early 1950s. These compounds have unique physical and chemical properties – including their carbon-fluorine bond – which can impart oil, water, stain, and soil repellency, chemical and temperature resistance, friction reduction, and surfactant properties to a wide range of products. The unique ability of PFAS to repel both oil and water has led to their application in numerous household goods and apparel.
PFOA and PFOS have been the most extensively produced and studied of these chemicals. They are persistent, bioaccumulative, and linked to various human diseases and cancers. While U.S. manufacturers have phased out their domestic use of PFOA and PFOS and other long-chain PFAS chemicals, they have shifted production to shorter-chain PFAS chemicals mentioned above.
Because of their unique properties, including waterproof, stain-resistant, and non-stick, PFAS are ubiquitous in industrial and consumer products and, now, in the natural environment:
- Food items: Food can be packaged in PFAS-containing materials, processed with equipment that used PFAS, or grown in PFAS-contaminated soil or water.
- Commercial household products: Stain- and water-repellent fabrics, non-stick products, polishes, waxes, paints, cleaning products. Commonly used products include Stainmaster® carpets, Scotchguard® fabrics, Teflon®, Gore-Tex®, and Tyvek®.
- AFFF: PFAS have been widely used in high performance firefighting products. The Department of Defense (DOD) has issued military specifications for AFFF since the 1960s, but AFFF has also become a common commercial product sold to private and public facilities around the world. For several decades, AFFF has been used by military bases, airports, oil refineries, industrial facilities, and local firefighters, and there are now thousands of sites across the United States. with related PFAS contamination.
- Industrial products and use: Facilities or industries (e.g., chrome plating, electronics manufacturing or oil refining and storage) where PFAS is used in the manufacturing process or is a byproduct.
- Waste facilities: Industrial and municipal waste treatment facilities and landfills treating PFAS-containing waste.
- Drinking water: Drinking water contamination typically associated with a specific industrial facility, treatment facility, or AFFF use.
- Living organisms: Animals and humans, where PFAS have the ability to build up and persist over time.
Risks to Human Health and the Environment
Because of their wide use, PFAS effect everyone. PFAS are found in the blood of virtually all humans and animals throughout the world, including newborn babies.
The EPA has identified PFOS and PFOA as emerging contaminants.
Research is ongoing, but current evidence suggests that PFOS and PFOA pose a significant risk to human health and the environment. Approximately 95% of people tested have PFAS in their blood, and PFAS can be detected in human breast milk and umbilical cord blood. Exposure to PFAS over certain levels may result in adverse health effects, including developmental effects, and independent epidemiological studies link numerous adverse health conditions to high exposures of PFOS or PFOA, including kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, pregnancy-induced hypertension, high cholesterol, liver damage, decreased fertility, and decreased antibody response to vaccines. Laboratory animals exposed to PFOS and PFOA have displayed changes in liver, thyroid, and pancreatic function, as well as developmental, immunological, and cancer effects.
Personal injury and related litigation regarding exposure to PFOA in particular has been ongoing since 1999. States and other public entities have increasingly brought litigation under their authority to protect the well-being of their citizens and their natural resources.
Risks to Businesses
Private businesses are also impacted directly and/or indirectly by these chemicals, either from their use during industrial production or from the use of products that contain these chemicals, such as AFFF. Potentially impacted industries include:
- Oil and gas
- Waste treatment
Federal Action Regarding PFAS
In 2002, 2007 and 2013, EPA issued significant new use rules (SNURs) on various PFAS compounds under Section 5 of the federal Toxic Substances Control Act.
In 2016, the EPA published a drinking water health advisory of 70 parts per trillion (ppt) for PFOA and PFOS, individually and combined. Several states, including California, Minnesota, New Jersey, and Vermont, have adopted levels far lower than 70 ppt, and the levels set by states have been on a downward trajectory. Many states also include other PFAS in the adopted limits. Texas, for example, has set soil and groundwater limits for 16 different PFAS compounds.
In June 2018, the Agency for Toxic Substances and Disease Registry (“ATSDR”) of the Department of Health and Human Services released a draft Toxicological Profile for Perfluoroalkyls. The ATSDR set minimal risk level in drinking water for four PFAS: (1) PFOA at 78 ppt (adult) and 21 ppt (child); (2) PFOS at 52 ppt (adult) and 14 ppt (child); (3) PFHxS at 517 ppt (adult) and 140 ppt (child); and (4) PFNA at 78 ppt (adult) and 21 ppt (child). Exposure below these levels, the ATSDR explained, “is not expected to result in adverse health effects.” Like the EPA health advisories, these risk levels are nonbinding.
In February 2019, the EPA issued its PFAS Action Plan. This plan calls for short and long-term actions. A few important actions include:
- Initiating steps to evaluate the need for a maximum contaminant level (MCL) for PFOA and PFOS;
- Beginning the necessary steps to propose designating PFOA and PFOS as hazardous substances;
- Developing groundwater clean-up recommendations for PFOA and PFOS;
- Promulgating Supplemental SNURs that require EPA notification before chemicals are used in new ways that may create human health and ecological concerns; and
- Using enforcement actions to help manage PFAS risk.
On October 22, 2019, the Director of the EPA, Andrew Wheeler, described the PFAS Action Plan as the “the most comprehensive action plan by the agency for an emerging chemical concern in our 49-year history.” Further, on February 26, 2020, the EPA issued an update and indicated that it has made progress under every aspect of the PFAS Action Plan.
Also, on December 4, 2019, EPA published an advanced notice of proposed rulemaking requesting comments on whether EPA should list 600 PFAS currently active in U.S. commerce, or any other PFAS, on the Toxics Release Inventory (TRI) required under the Emergency Planning and Community Right-to-Know Act (EPCRA).
On December 20, 2019, Congress amended EPCRA to add certain individual PFAS chemicals to the TRI program. These include the PFAS commonly known as PFOA, PFOS, GenX, PFNA, and PFHxS, and certain salts and other compounds associated with these PFAS, along with other PFASs listed under other statutes and regulations.
For example, in December 2019, the EPA issued a guidance document, Interim Recommendations to Address Groundwater Contaminated with PFOA and PFOS, which provides screening levels and preliminary goals to allow the EPA to develop final cleanup levels for PFOA and/or PFOS contamination of groundwater that feeds drinking-water supplies nationwide. The guidance recognizes that CERCLA and RCRA cleanup actions may flow from the information collected and the final cleanup levels once they are set. The guidance recommends the following actions:
- Screening sites using a recommended groundwater screening level based on target Hazard Quotient of .1 for PFOA and/or PFOS individually, which is currently 40 ppt;
- Using EPA’s PFOA and PFOS Lifetime Drinking Water Health Advisory level of 70 ppt (combined or individually) as the Preliminary Remediation Goal (PRG) for groundwater that is a current or potential source of drinking water, where no state or tribal MCL or other applicable or relevant and appropriate requirements are available or sufficiently protective; and
- In situations where the groundwater is currently being used for drinking water, EPA expects that responsible parties will address levels of PFOA and/or PFOS over 70 ppt.
On February 20, 2020, the EPA announced a proposed decision to regulate PFOS and PFOA in drinking water. A notice was published on the Federal Register on March 10, 2020 (85 Fed. Reg. 14,098). As relevant here, in the notice, the EPA seeks: (1) comments on its proposal to regulate PFOS and PFOA, (2) information and data on other PFAS substances, and (3) comments on the potential monitoring requirements and regulatory approaches EPA is currently considering.
State Action to Date
PFAS contamination is a nationwide problem. In the absence of binding federal standards, several states have developed standards and guidance values for PFAS in drinking water and groundwater. Many states have either adopted the EPA’s health advisories for PFOA and PFOS or selected the same health-based values, choosing to use the concentrations as advisory, non-regulated levels to guide the interpretation of PFOA and PFOS detections. Other states have developed health-based values based on their own analysis of the scientific data, and many have arrived at levels below 70 ppt.
In addition, several U.S. states and territories have brought litigation to address PFAS and/or AFFF contamination in their states, including Guam, Michigan, Minnesota, New Hampshire, New Jersey, New York, North Carolina, Northern Mariana Islands, Ohio, and Vermont.
National PFAS Representation
Kelley Drye Leads in the AFFF MDL
Kelley Drye represents multiple clients in the In Re: Aqueous Film-Forming Foams Products Liability Litigation, MDL No. 2:18-mn2873-RMG, in the U.S. District Court for the District of South Carolina. Further, Bill Jackson serves on the Plaintiffs Executive Committee and chairs the States/Sovereigns Committee on matters being prosecuted on behalf of all states and sovereign governments in the MDL. Additionally, John Gilmour co-chairs the Property Damages Committee and is a member of the States/Sovereigns Committee in the MDL.
PFAS Representation for Businesses
Kelley Drye serves as national counsel to the Valero Companies in lawsuits filed in multiple state courts, including California, Louisiana, Michigan, Oklahoma, Tennessee, and Texas, as well as in the AFFF MDL to recover damages that they have incurred and will continue to incur arising out of the purchase, use, storage and/or disposal of AFFF products.
Kelley Drye is representing other private sector clients in the energy sector asserting claims against the manufacturers of AFFF and PFAS for environmental investigation and remediation costs, water treatment costs, and breach of contract damages.
Kelley Drye attorneys have advised and represented clients in connection with PFAS impacts at properties undergoing remediation and properties or businesses that are the subject of transactions involving commercial loans, purchases, leases and mergers and acquisitions.
Kelley Drye’s knowledge of the rapidly developing regulatory and liability environment associated with PFAS impacts have allowed us to provide our business clients with a unique perspective and practical advice for managing PFAS-related risks.
PFAS Representation for States and Sovereign Entities
Kelley Drye is serving as Special Counsel to the Attorney General of New Jersey representing the New Jersey Department of Environmental Protection in a series of actions related to statewide-PFAS contamination, including:
- Litigation against DuPont, Chemours and 3M related to significant PFAS and other contamination at and from DuPont’s former Chambers Works, Deep Water facility;
- Litigation against DuPont and Chemours related to significant PFAS and other contamination at and from DuPont’s site in Parlin, New Jersey; and
- Litigation against DuPont, Chemours, 3M and the manufacturers of AFFF for statewide PFAS contamination from AFFF.
Kelley Drye represents the state of Ohio and Ohio Attorney General Dave Yost in litigation against DuPont and its spin-off Chemours over the company’s decades-long discharge of PFOA from its Washington Works Plant in Parkersburg, West Virginia into Ohio and seeking to recover all past and future costs to investigate, remediate, and restore lands and waters of Ohio contaminated by PFOA, as well as damages and equitable relief.
Kelley Drye is serving as Special Counsel to the Attorney General of New Hampshire in representing the state in two statewide litigation matters:
- Litigation in the AFFF MDL against DuPont, Chemours, 3M and the manufacturers of AFFF for statewide PFAS contamination from AFFF; and
- Litigation in New Hampshire State Court arising from PFAS contamination in the State’s natural resources statewide.
Kelley Drye represents the Government of Guam and the Guam Attorney General in the AFFF MDL against the manufacturers of PFAS and AFFF for island-wide PFAS contamination and seeking island-wide remediation and treatment costs, as well as natural resource damages.
Kelley Drye is serving as Special Counsel to the Office of the Attorney General to represent Northern Mariana Islands (CNMI) in litigation related to PFAS contamination from AFFF in the AFFF MDL. CNMI’s suit seeks remediation and treatment costs and damages arising from AFFF, as well as natural resource damages.
PFAS Representation for Water Districts and Municipal Governments
Kelley Drye is also representing a variety of Water Districts and Municipal Governments seeking the costs to treat, in perpetuity, public drinking water systems that have been contaminated by PFAS from AFFF in states across the country, including water districts in: