Vol. No. 54-1 Water Quality

Water Quality

PFAS Risks and Litigation

PFAS is the term for a group of thousands of chemicals composed of perfluoroalkyls and polyfluoroalkyls.^[1] Because of their long-lasting nature, the term “forever chemicals” is often used interchangeably with the term PFAS.^[2] After their identification in the 1940s, PFAS quickly became commonplace in consumer products and manufacturing due to their unique hydrophobic and oleophobic properties (water- and oil-repellent properties).^[3] PFAS are regularly used in cookware, food packaging, adhesives, firefighting foams, cosmetics, and textiles.^[4] Additionally, PFAS play an integral role in many manufacturing processes, such as those used to produce lubricants, semiconductors, pesticides, and surfactants.^[5] The textile industry is the largest single user of PFAS.^[6] 

The same oleophobic and hydrophobic properties that make PFAS so useful also facilitate their spread through the environment and increase the difficulties surrounding the removal and cleanup of these chemicals.^[7] Currently, PFAS are widely present in drinking water, soil, air particulates, and wild animals.^[8] PFAS are not yet fully understood, but they are unequivocally an omnipresent and inescapable facet of the modern world.

Risks of PFAS Exposure for Human Health

The human health risks of PFAS are not fully known and require more study, but many alarming effects have already been linked to PFAS exposure.^[9] Studies have repeatedly proven that PFAS can, and do, enter the human blood stream.^[10] High concentrations of PFAS have been found in the blood of humans living near a locus of PFAS contamination and the long-term health effects are still undetermined.^[11] Additionally, peer-reviewed studies have shown that human exposure to PFAS can cause adverse health effects, including decreased fertility, developmental interference in adolescents, increased cancer risk, immune system suppression, hormonal interference, and obesity.^[12] More specifically, exposure to PFAS has been linked to the development of renal cancer^[13] and the disruption of testosterone and other growth hormones after adolescent exposure.^[14] However, studies of PFAS’ health effects so far have largely been limited to a select few compounds, and the effects of thousands of other PFAS compounds are almost completely unknown.^[15] Due to the variety of the compounds under the label “PFAS” and the constant creation of new PFAS, much remains unknown about the class of chemicals. But with what has already been discovered, unstudied similar compounds probably also have adverse impacts on human health.

Impacts of PFAS on the Environment

The full effect of PFAS on the environment also requires more study, but some impacts have already occurred. Alarmingly, PFAS have been found in nearly every level of the ecological system, including water, soil, air, and wild animals.^[16] PFAS contamination is also common in drinking water across the United States, with an estimated 45% of drinking water containing at least one PFAS compound when it comes out of the tap.^[17] Additionally, PFAS pose a unique risk in aquatic ecosystems because their concentrations rapidly bioaccumulate inside and among organisms.^[18] As a result of this bioaccumulation, detectable levels of PFAS are found in nearly every fish in America.^[19] Despite this, only a handful of states have issued specific PFAS-related guidance regarding the consumption of fish, and the effect of consuming contaminated fish remains unclear.^[20] Once again, the need for further research and increased awareness is apparent.

PFAS Litigation and Settlement

Within the last year, the manufacturing and chemical companies 3M, Chemours, DuPont, and Corteva all announced massive settlements stemming from their involvement with manufacturing PFAS.^[21] Chemours, DuPont, and Corteva recently announced they would jointly pay $1.19 billion to settle certain claims against them.^[22] However, the companies still face potential liability for thousands of other PFAS-related claims.^[23] 3M alone is facing over 4,000 lawsuits for its actions leading to PFAS contamination.^[24] Some financial firms predict that 3M’s total legal costs may exceed $140 billion by the time all claims are finally settled.^[25] With 3M’s total market capitalization somewhere in the ballpark of $50 billion, bankruptcy is a real concern if the total costs of the litigation are anywhere near this estimate.^[26] To avoid further liabilities, 3M has announced plans to end their use of all PFAS by 2025.^[27] 

Past asbestos litigation and class action lawsuits may provide insight into what the future holds for PFAS manufacturers. Following the discovery that asbestos was carcinogenic, the manufacturers were inundated with lawsuits, and many declared bankruptcy.^[28] One tactic used by the manufacturers was to spin off their asbestos production divisions and consequently have those new companies declare bankruptcy, thereby insulating the main company from liability.^[29] This process is commonly referred to as the “Texas Two-Step” and often leaves the plaintiffs without a path to receiving monetary damages, because the new, smaller companies do not have enough assets to be divvied up during the bankruptcy process.^[30] It is highly likely that PFAS manufacturers will attempt to use this same strategy to save some of their operations. Furthermore, 3M has already employed this legal tactic to try to avoid liability for another multibillion settlement over their sale of faulty earplugs.^[31] 3M spun off its earplug manufacturing division, which subsequently declared bankruptcy.^[32] Based on this precedent, 3M could attempt the same legal maneuver to avoid liability from the PFAS litigation. While arguably unethical, the Texas Two-Step is legal.^[33] With companies facing massive liability from PFAS litigation, it seems unavoidable that companies will employ similar tactics across the board.

However, the 3M settlement for drinking water will likely not cover the entirety of remediation costs for the affected municipalities.^[34] For example, Orange County, California, alone will likely require over $1 billion to fund the needed remedial infrastructure, with much of the cost likely to fall on taxpayers.^[35] Even smaller cities may still require hundreds of millions of dollars to properly rid their drinking water of PFAS.^[36] For instance, Stuart, Florida, a city with a population of approximately 18,000 residents, estimates it will require upwards of $100 million to remove the PFAS contamination from the water in its jurisdiction.^[37] A spokesperson from the City of Stuart stated that the settlement would not make the City “whole,” as it does not provide enough money to cover estimated remediation costs.^[38] Unfortunately, PFAS remediation and the implementation of new water treatment plants are incredibly expensive processes and will have to be paid for at least in part by the taxpayers harmed by the pollution.

3M, Chemours, Corteva, and DuPont are by no means the only companies responsible for the PFAS pollution. Twelve companies are responsible for the majority of PFAS production worldwide, but countless smaller companies may also be responsible.^[39] These recent settlement agreements are simply the first legal moves in what is almost guaranteed to be a long and protracted fight involving millions of people and many entities. For example, these settlements do not release the companies from liability for any personal injury claims.^[40] Further, the attorneys general of several states are still actively filing lawsuits, and the full extent of the legal battle is yet to be determined.^[41]

Current Standards and What is to Come

Currently, there are no enforceable federal standards for PFAS.^[42] However, the Environmental Protection Agency (EPA) recently adopted a final National Primary Drinking Water Regulation (NPDWR) that would set a legally binding maximum concentration of PFAS that can be in drinking water, effective by the end of 2026.^[43][a] Additionally, EPA regulatory guidance would require PFAS testing and mandate that the concentration levels be made available to the public.^[44] The regulation comes as PFAS are gaining public attention, largely because of the enormous lawsuits brought against their manufacturers.^[45] 

More research is needed to fully understand the risks of PFAS, but recent testing shows that nearly every American has detectable levels of PFAS within their body.^[46] Especially as scientists learn more about the health ramifications of PFAS exposure, the legal problems of these PFAS manufacturers will only intensify and may ultimately be the death knell for many companies.

Alisha Adams is an attorney in the Environmental and Legislative section of Jackson Walker’s Austin office. She focuses on permitting and water matters, including real estate developers and special utility districts and counsels clients on transactional and regulatory issues before the Public Utility Commission of Texas.

Kevin Sorstokke is a 2L from Boulder, Colorado. He attended the University of Michigan and joined TELJ during his first year of law school.  Kevin has always been an avid outdoorsman and has a strong interest in protecting the environment.