PFAS Explained: What You Need to Know
PFAS stands for "per- and polyfluoroalkyl substances." These are a group of man-made chemicals that have been widely used since the 1950s because of their water- and grease-resistant properties. Today, there are approximately 4,700 fluorinated substances with "PFAS" names, including Teflon, Stainmaster, Teflon, Aqueous Film Forming Foam, and hundreds more.
Their multiple benefits have led to widespread use of PFAS chemicals in a number of industries, including:
These common applications expose consumers to potentially harmful PFAS chemicals. For example, PFAS have been found in stain-resistant clothing sold at retail stores, in nonstick cookware, food packaging, stain-resistant carpets and in other products. On top of their consumer uses, PFAS chemicals have also been "deliberately introduced" into the environment through industrial releases associated with various operations, including oil production/US military sites, manufacturing and the use of firefighting foam in fire training operations . Environmental contamination can result from the direct and indirect introduction of PFAS from industrial operations, improperly managed waste disposal, fertilizer application and biosolids land application from wastewater treatment plants. PFAS have been linked to: thyroid disease, immune system problems, kidney cancer, testicular cancer, bladder cancer, prostate cancer, liver cancer, ovarian cancer, breast cancer, ovarian cancer, developmental problems in pregnancy, liver damage, hormone disorders, reproductive issues, elevated cholesterol levels, decreased vaccine response in children, development of fast-growing liver and kidney tumors in rodents, decreased fertility in women, decreased age at menstruation in females, increased risk of obesity in children, increased risk of high cholesterol, lower birth weight, decreased size of mammary glands, developmental abnormalities in fetuses (e.g. heart defects), decreased gestational length, increased risk of kidney cancer, higher risk of hypertension, lower IQ, and increased risk of high cholesterol. The state of Michigan recently identified 1,124 locations where PFAS chemicals have contaminated drinking water, ground water and surface water.
PFAS Law Firms and Their Function
Law firms that specialize in PFAS litigation have pivotal roles to play in these proceedings. From providing legal counsel to those affected by PFAS contamination, to representing groups or communities impacted by this saga. Legal professionals in these niches can help hold not only large corporations but also state and local governments accountable at the highest levels.
So how does this process typically unfold, and what are the functions carried out by PFAS law firms? The most common course in an individual case is that a victim will either contact a PFAS law firm directly, or through an ad, a referral from a friend or family member, or even direct outreach to lawyers who have provided specialized insights into their plight.
In an initial conversation with a lawyer specializing in this area, the victim can share details about their direct experiences or the impact of PFAS contamination on their family or community. The lawyer or law firm can then determine whether there are grounds for taking action in court.
In many instances, PFAS law firms bring in experts in science, engineering, medicine and other fields to investigate more thoroughly the circumstances surrounding the contamination in question. Their findings can then be used to craft wider-reaching litigation involving class-action lawsuits, multi-party lawsuits, or even mass torts.
Beyond filing lawsuits and addressing the specifics of each case, PFAS law firms also often work with regulatory groups and agencies on complicated matters like regulatory compliance, mapping out areas of contamination, and cleaning up sites. One responsibility might include working to regain access to contaminated sites so that other groups can begin the process of decontamination.
It can be a long, difficult road to successfully navigate the litigation landscape with something as complex as PFAS contamination. PFAS law firms often become trusted resources and advocates for affected groups, both on legal issues and on overall health and safety matters involving exposures. The impacts of contamination are wide-ranging, and may well implicate a number of different areas of expertise.
What to Consider When Selecting a PFAS Law Firm
When it comes to the legal representation of clients with potential harmful PFAS (per- and polyfluoroalkyl substances) exposure and contamination, it is vital to select the right law firm. This selection process often involves evaluating various factors such as experience, success rate, specialization, geographical location, costs, and the type of personal attention clients can receive.
A law firm’s experience in handling PFAS cases is a crucial aspect to consider. The body of PFAS toxic tort-related jurisprudence is still being developed; there are few experienced PFAS attorneys in this arena. It is often helpful to seek out a law firm with a strong focus on environmental contamination, but experience with PFAS litigation specifically can provide key confidence for victims. In addition, those firms who have been involved in cases against "forever chemicals"- including companies like DuPont and Chemours- have a leg up on the competition. They likely have a better understanding of their tactics and defense strategies. Clients should not hesitate to ask about a prospective PFAS law firm’s experience with PFAS-related claims and the compensation or settlements they have achieved on behalf of their clients.
Of course, no two PFAS cases are identical. A law firm’s success rate has a significant impact on their ability to attract new clients. Success is defined by a law firm’s ability to either obtain settlements or win trials, successfully pursue motions to compel evidence production, and file consumer protection-type class actions and other litigation. These efforts also help secure a client’s rights even in future PFAS-related litigations.
The specialization of a PFAS-related law firm adds to their competitiveness in terms of attracting clients. Environmental contamination firms tend to remain in the loop regarding new scientific and engineering studies on PFAS, industry events, and case law developments. They may be able to refer victims to scientists or engineers who support their cases. Firms that are involved in multi-district litigations (MDL) involving PFAS (i.e., thousands of similar individual lawsuits have been grouped together) bring a certain level of PFAS expertise to their clients. As of July 2020, more than 15 MDL lawsuits involving perfluorinated compounds like PFAS (PFCs) have been formed.
The location of a PFAS law firm may be less applicable in situations where there are national or multi-national businesses involved. But in instances of localized PFAS contamination, retaining a local law firm can be advantageous. They may have an intimate knowledge of the land and developing cases growing out of local contamination, and most importantly, they will have a closer working relationship with the court. Likewise, it can be more convenient for clients to visit a law firm closer to their home.
Geography can also be important if a client is part of a larger PFAS MDL, which, as mentioned above, is rapidly expanding. Depending on the MDL, the lead attorneys may have to litigate claims in courts across the country. Clients should ask a potential PFAS law firm whether they have litigators prepared and willing to travel to take on out-of-state cases.
All good attorneys are entrepreneurs at heart, especially in the case of personal injury and toxic tort litigants. Their performance will ultimately determine how they will be paid. Potential clients should avoid law firms requesting retainer fees before they work on their case or getting paid only if they "win." Preferably, a company should have an agreement with the law firm that all the firm’s expenses are covered by a weekly or monthly expenditure agreement during the case and then deducted from whatever compensation the firm collects for the client. Firms may agree to keep a specific amount of the recovery from a client’s damages award or settlement for their services.
A prospective client can also learn about the restoration of trust and confidence in clients by PFAS law firms by evaluating customer references. A client’s other PFAS-related clients can provide constructive reviews of the law firm’s actual experience, which can be essential to ensure that a victim gets the best attorney for their case.
Recent PFAS Litigation and Its Outcomes
While the EPA has made significant strides in our understanding of PFAS, many serious questions remain unanswered. And, the science gets scarier with every new study. As a result, lawsuits connecting PFAS to human injury are on the rise. While lawsuits can be a nuisance to corporations, they are a valuable tool to protect us from serious harm. It is important we all remain aware of the dangers PFAS poses and use our collective power to hold polluters accountable.
In a report by the Environmental Working Group, numerous recent lawsuits resulting in large settlements have been initiated against major PFAS manufacturers , demonstrating a growing consensus of the dangers posed by the chemicals:
3M Co. The U.S. military sued 3M in January 2018 for losses related to the cost of cleaning up PFAS contamination from firefighting foam used on its bases. Dupont/Herbert Dupont agreed to pay nearly $670 million in July 2018 to settle legal claims against it and its spinoff company, Chemours, alleging that chemical releases into the Cape Fear River in North Carolina contaminated drinking water supplies. Dupont/Herbert A settlement of up to $340 million was reached in April 2019 between DuPont, Chemours and a large group of people exposed to PFAS in West Virginia. Monsanto Tyco and Chemguard Tyco and Chemguard agreed to pay a settlement of more than $16 million to be used to clean up PFAS contamination at a former manufacturing facility in Appleton, Wisconsin.
Rules and Regulations Pertaining to PFAS Lawsuits
PFAS litigation is driven by a complicated set of current and historical laws. Addressing environmental issues as a result of contaminated groundwater is no simple task. There are a variety of environmental laws, such as the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), state laws and private company policies (such as voluntary internal clean-up policies). The overlap of these various legal frameworks creates both protections and exposes involuntary defendants to liability for communities impacted by PFAS contamination.
The Environmental Protection Agency (EPA) currently regulates PFOS and PFOA as hazardous substances in the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The NCP is the federal government’s blueprint for responding to hazardous substance spills. Although the NCP is regulations, the NCP regulations do not apply to instances where a company disposes of its own waste. Rather, the NCP regulates instances where a party is responsible for releasing hazardous substances into the environment and can be found liable for costs incurred by the federal government in cleaning it up.
Twelve states have enacted legislation limiting the allowable PFAS in drinking water, or are considering doing so: Connecticut, Delaware, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia, and Wisconsin. In addition, and notwithstanding that the EPA has not established enforceable drinking water standards for PFAS at the federal level, the EPA has imposed notification requirements on drinking water systems, requiring testing for PFAS.
Chemical companies have been sued for failure to notify authorities of the illegal dumping of PFAS, and also for knowingly contaminating water sources through disposal of PFAS-containing products.
In addition to state limits on PFAS, there are several bills before Congress that could also impact what are considered regulated levels of PFAS contamination.
As states continue to regulate PFAS, and as private industry implements its own voluntary clean-up policies and procedures, the landscape of PFAS litigation continues to evolve.
Emerging Trends in PFAS Lawsuits
Future trends in PFAS litigation could encompass a broader range of environmental concerns, a closer look at the long-term consequences of exposure, and increased litigation as more people seek to hold manufacturers accountable for pollution. As we enter a new decade, the long shadow cast by PFAS contamination on our country’s environment remains a topic of concern—and as more people seek the help of PFAS law firms to bring their claims, several forthcoming laws and amendments could shape the future of PFAS-related litigation.
On the whole, a significant body of evidence already exists linking PFAS to health problems, so forthcoming studies are less likely to focus on establishing PFAS health risks than on refining testing methods, identifying new sources of exposure, and enumerating the various circumstances under which long-term exposure can lead to illness. So far, federally conducted studies such as the National Academies of Sciences, Engineering, and Medicine’s 2016 report on per- and polyfluoroalkyl substances (PFAS); the Agency for Toxic Substances and Disease Registry’s (ATSDR’s) 2018 toxicological profile on PFOA and PFOS; and the 2020 ATSDR draft toxicological profile on PFBS have provided a useful body of information that has helped support PFAS lawsuits.
As time goes on, more data will emerge that paint a clearer picture of the effects of long-term PFAS exposure. Ongoing concerns about effects on reproductive health, cancer, kidney function, and immune response will probably continue to be the focus of these studies, although future research may place increasing emphasis on effects on childhood development as well.
PFAS legislation is already being considered in many jurisdictions where litigation over contamination has moved beyond the preliminary stages. With this blog post, we intend only to briefly survey some of the efforts under consideration and to examine their potential impact . For more detailed analysis of a specific law or amendment, feel free to reach out to the representatives of any of the law firms listed here.
As PFAS pollution continues to be discovered, the federal government is preparing to enact legislation that would require certain manufacturers to pay for destroying the contaminated materials they used to produce products. The Supporting Expanded transgender health services and discussed in the article, the PFAS Action Act of 2019 would require certain manufacturers to "manufacture PFAS substances in an incinerator that has the capacity to destroy 99% of the mass of the PFAS substance." This law, if enacted, may further the work of PFAS law firms by giving them additional sources of evidence in bringing lawsuits against companies that manufactured products that contributed to PFAS contamination.
Other important domestic developments include water quality standards established by states to reduce under-regulated PFAS exposure to residents and new attorney general action in several states.
More stringent drinking water standards that include a wider array of PFAS compounds can be expected to rise in the wake of events like those in Hoosick Falls, New York; Camp Lejeune, North Carolina; Pease International Tradeport, New Hampshire; and North Bennington, Vermont, where residents were exposed to not only PFOA from industrial waste, but also other PFAS compounds whose effects may not yet be clearly understood.
Finally, as native communities living near areas of heavy pollution have been granted an increased sense of agency in these matters, more PFAS law firms and clients alike will see traditional samplings of affected land and water are gradually augmented by consulting community members, including those from native tribes, about the ways in which they anticipate these pollutants to impact their lives and surroundings.