Post Authored By: E. Lynn Grayson
Lawyers need to have a general awareness and basic understanding of issues and concerns that may arise in their law practices and present challenges for the clients they serve. From time to time, new environmental matters arise that merit attention not only by environmental lawyers but all lawyers, personally and professionally. New environmental and public health concerns and recent regulatory and litigation developments make per- and polyfluoroalkyl substances (PFAS) an important chemical we all need to know about and better understand.
PFAS have been classified by the U.S. Environmental Protection Agency (EPA) as an emerging contaminant and are synthetic chemicals used in a variety of industries since the 1940s. These chemicals resist heat and repel water and stains. For decades, they have been used in many industrial applications and consumer products such as carpeting, waterproof clothing, upholstery, food paper wrappings, personal care products, fire-fighting foams, and metal plating.
While there are over 5,000 PFAS, the most common PFAS are perfluorooctanoic acid (PFOA) and perfluoro octane sulfonate (PFOS). PFOA and PFOS were manufactured for the longest time, are the most widespread in the environment, and are the most well-studied. U.S. chemical manufacturers generally phased out PFAS in the 2000s but PFAS continues to be present in many industrial operations and may be legally imported.
These chemicals, commonly referred to as “forever chemicals,” are persistent and do not break down in the environment. They bioaccumulate and build up over time in the blood and organs. The Environmental Working Group estimates that as many as 99% of Americans may have PFAS in their bloodstreams as a result of exposure to these chemicals. PFAS contamination is widespread throughout the U.S. and often found at or about industrial/manufacturing operations where these chemicals were used, in landfills and at Superfund sites where PFAS-impacted wastes are present as well as in private and public water supplies. A recent study completed by the Environmental Working Group and Northeastern University identified 712 PFAS contaminated sites in 49 states including contaminated drinking water systems serving an estimated 19 million Americans.
PFAS are the focus of aggressive environmental regulatory scrutiny in the U.S. related to compliance and cleanup standards. At the federal level, EPA released a 2019 PFAS Action Plan outlining commitments to address PFAS concerns moving forward. In July 2020, EPA Region V in Chicago highlighted partnerships and activities to be implemented on a regional basis pursuant to the Action Plan including: 1) analyzing PFAS at electroplating operations in Michigan; 2) monitoring for PFAS in the Great Lakes through fish tissue, air, water and sediment sampling; 3) collaborating to study PFAS-containing foam identified in Michigan, Wisconsin and Minnesota; 4) studying surface water in Minnesota; and 5) providing technical support to Illinois, Wisconsin, Michigan and Minnesota through reliance on EPA’s Chicago laboratory to analyze PFAS samples and validate EPA methodology.
Despite increased focus on PFAS in Region V, EPA has been slow to regulate PFAS. In 2016, EPA issued a drinking water health advisory of 70 parts per trillion (ppt) for PFOA and PFOS but to date, EPA has not identified a nationwide enforceable standard. As a result, states have stepped up to manage PFAS public health and contamination issues creating a patchwork of laws and regulations. This is particularly true when it comes to cleanup standards and water quality limits where a growing number of states have issued state-specific standards primarily related to drinking water.
In January 2020, the Illinois Environmental Protection Agency (IEPA) proposed groundwater standards for 5 PFAS chemicals ranging from 14 ppt to 140,000 ppt. Last month, IEPA announced a statewide investigation of PFAS in 1,749 community water supplies. According to IEPA, the investigation will be completed in 12-15 months and data collected will be used to support future state-only maximum contaminant levels for PFAS.
The State of Michigan has been one of the most aggressive states when it comes to identification of PFAS contamination and overall regulation of PFAS. The Michigan Department of Environment, Great Lakes and Energy (EGLE) has identified PFAS contamination as the most significant environmental crisis over the last 40 years. This is based upon EGLE’s investigative efforts completed to date suggesting as many as 11,000 PFAS contaminated sites may be present adversely impacting over 1.5 million residents living in areas with PFAS contaminated water supplies. Other states have taken action too including New York, North Carolina, California, New Jersey and New Hampshire and efforts are ongoing in these states and others to address and assess how best to manage PFAS concerns.
PFAS contamination and related public health concerns are the subject of a growing number of lawsuits. The 2019 movie Dark Waters highlights one attorney’s decades long fight over the improper disposal of PFAS by DuPont and the environmental and public health consequences on the rural community of Parkersburg, West Virginia. The movie and related articles raised awareness regarding the presence and legal status of PFAS in soil and water throughout the U.S. The primary targets of PFAS litigation in the U.S. have been 3M and DuPont—the two most significant PFAS manufacturers. 3M manufactured PFAS for use in firefighting foam and as a critical component of 3M’s signature Scotchgard product. DuPont manufactured PFAS for a variety of uses including for use in its patented Teflon coatings. These companies have been the subject of significant PFAS lawsuits:
1. In 2018, 3M paid $850M to settle PFAS contamination claims filed by the State of Minnesota; $720M will be used to restore and improve drinking water systems and fund natural resource projects in the Twin Cities Metropolitan area. This liability arose from contamination resulting from 3M’s manufacturing operations in the Minneapolis area.
2. As briefly referenced above, residents of Parkersburg, West Virginia sued DuPont in 2001 for personal injury and property damage resulting from PFOA contamination in waterways surrounding the company’s manufacturing plant where Teflon was produced. In 2017, DuPont settled 3,550 cases for $670M.
3. DuPont has been sued by the State of New Jersey and nearby residents for contamination resulting from the past and present chemical manufacturing operations at the Chamber Works in Carneys Point including PFAS contamination in water supplies. It is estimated that DuPont may face $1B in personal injury and property damage claims.
4. Over the past 3 years, several states have sued these companies for PFAS contamination including North Carolina, New York, New Jersey and Michigan. These lawsuits generally allege that the companies concealed the dangers of PFAS, withheld scientific evidence and contaminated the environment.
5. Earlier this year, Earthjustice filed a lawsuit on behalf of certain environmental nonprofits representing communities in Ohio, Texas, Illinois and California, alleging deficiencies in the U.S. Department of Defense’s environmental review of plans to burn millions of gallons of firefighting foam.
PFAS litigation is expanding to target non-PFAS manufacturers that also may have responsibility for PFAS contamination including industrial operations that are a source of PFAS impacts to neighboring properties, contamination arising from offsite disposal facilities associated with PFAS-containing wastes and the ongoing use of products containing PFAS.
This is a rapidly unfolding area of environmental law with expanding and ever changing regulatory and litigation developments. PFAS also is of growing interest to consumers regarding how best to manage and mitigate PFAS exposures in our homes and daily lives in general. For additional information, visit the EPA PFAS webpage at https://www.epa.gov/pfas or the IEPA PFAS webpage at https://www2.illinois.gov/epa/topics/water-quality/pfas/Pages/default.aspx.
 Dave Andrews, “EWG Proposes PFAS Standards that Fully Protect Children’s Health,” Environmental Working Group (October 2019).
 Sydney Evans, et al., “PFAS Contamination of Drinking Water Far More Prevalent Than Previously Reported: New Detections of ‘Forever Chemicals’ in New York, D.C., Other Major Cities,” Environmental Working Group (Jan. 22 2020).
 “EPA’s Per-and PolyFluoroalkyl Substances (PFAS) Action Plan,” The United States Environmental Protection Agency (Feb. 2019).
 For more information, see “Quality Assurance Project Plan: Per- and Polyfluoroalkyl Substances (PFAS) Sampling in Community Water Supplies,” Illinois Environmental Protection Agency (June 2020).
About the Author:
Recognized as one of the nation’s leading environmental lawyers, E. Lynn Grayson is a partner in the women-owned boutique environmental law firm of Nijman Franzetti LLP. She serves as lead environmental counsel in U.S. and international transactions and counsels corporate leadership on the management of material environmental risks, liabilities and compliance matters. Ms. Grayson also advises clients on critical EHS enforcement, regulatory and litigation cases, conducts environmental internal investigations and defends clients in whistleblower and qui tam actions.