Lawsuits against companies that have made or used emerging drinking water contaminants could continue to grow even if EPA sets national limits for them, according to attorneys who deal with the issue.
“I suspect you’ll see more litigation around the country” as sampling to detect per- and polyfluoroalkyl (PFAS) substances increases, said Matthew D. Thurlow, a partner in BakerHostetler LLP’s Washington and Los Angeles offices. “You’re just seeing the tip of this litigation.”
New Hampshire and other states are pursuing regulations that would increase mandatory sampling of PFAS, said Thurlow, whose law firm often represents major corporations in personal injury and other legal challenges.
Thurlow spoke Feb. 7 during a session on the emerging contaminants held during the Environmental Law 2019 forum in Washington, D.C.
Whatever action the Environmental Protection Agency takes is unlikely to quell litigation, Stephen G. Schwarz, a managing partner with Faraci Lange LLP’s Rochester, N.Y., office, told Bloomberg Environment following a presentation he gave at the legal forum.
Nonstick, But Stick Around
Research on the two most well-studied members of the PFAS class, perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA), has shown they don’t break down in the environment and they concentrate in people’s bodies, said Schwarz, who is representing plaintiffs exposed to PFAS from industries in Hoosick Falls, N.Y., and Petersburgh, N.Y.
A panel of independent scientists that examined PFOA’s effects on Ohio and West Virginia residents found the chemical was “more probable than not” to be associated with kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, high cholesterol, and high blood pressure during pregnancy, Schwarz said.
Some PFAS chemicals, such as ones that break down to become PFOS and PFOA, have been used for decades to make consumer and industrial products including heat-resistant cables and gaskets, nonstick cookware, and water- and stain-resistant fabrics.
But once the chemicals break down into PFOS and PFOA there is little natural degradation, meaning they remain in the environment for decades or even centuries, said Melanie Benesh, a legislative attorney with the nonprofit Environmental Working Group.
“We only know a lot about the health effects of some of them, but we have concerns about the class of them,” which has been estimated to include some 5,000 chemicals, she said.
Acting EPA Administrator Andrew Wheeler said Feb. 4 the agency would finalize a national strategy to address PFAS next week.
Wheeler has declined to promise lawmakers whether, as part of that plan, the agency will set enforceable Safe Drinking Water Act limits for PFOS or PFOA. Currently the agency offers health guidance but not specific limits for water utilities and waste site managers.
Waste, Resources, Nuisance Suits
Uncertainties about whether PFAS chemicals are causing illnesses in people, combined with monitoring data that showed only 1.3 percent of public water utilities serving more than 10,000 people found PFOA and PFOS exceeding the EPA’s health advisory of 70 parts per trillion, mean neither chemical may meet the Safe Drinking Water Act’s criteria for setting an enforceable limit, Thurlow said.
Whether or not the EPA opts to regulate PFAS, the lawsuits being brought against companies, municipalities, and other organizations aren’t limiting their challenges to personal injuries alone, he said.
Plaintiffs are asserting that companies have violated hazardous waste disposal standards, that PFAS releases have damaged natural resources, and that the chemicals have encroached on private property causing nuisances, Thurlow said.