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PFAS Litigation ‘Second Wave’ Ahead if Biden Delivers New Rules

Dec. 8, 2020, 11:00 AM

The incoming Biden administration’s pledge to take quick action to address “forever chemicals” will have ripple effects in high-stakes lawsuits playing out across the country.

Per- and polyfluoroalkyl substances, or PFAS, are already feeding a fast-growing web of litigation among manufacturers, water utilities, states, and people affected by contamination, as some of the chemicals have been linked to cancer and other health problems.

The Environmental Protection Agency has take some steps to address PFAS concerns under President Donald Trump, and it’s poised to make swifter progress under President-elect Joe Biden, who listed PFAS action as a priority in his campaign’s environmental justice plan.

Specifically, the Democrat has vowed to use the federal Superfund law and the Safe Drinking Water Act to tighten oversight of some types of PFAS—moves that will affect existing legal battles and drive new ones.

“We’re already in the thousands of PFAS lawsuits, but you may see another wave,” Atlanta-based King & Spalding LLP attorney Douglas A. Henderson said. The incoming administration’s anticipated regulatory updates will create “stronger hooks” for legal action on PFAS, he added.

‘Big Stick’ on Superfund

The Biden campaign’s commitment to declaring PFAS hazardous under Superfund law would create a liability web even wider than the one that already entangles dozens of manufacturers, suppliers, distributors, and users of the chemicals.

“Think of CERCLA as a big stick that you can beat people with,” Henderson said, referring to the Comprehensive Environmental Response, Compensation, and Liability Act, which governs Superfund cleanups.

If the EPA designates PFAS as hazardous under the law, the agency gets greater latitude to add sites to the National Priorities List, particularly those primarily contaminated with the chemicals, said Allison Rumsey, partner at Arnold & Porter Kaye Scholer LLP in Washington.

“That just gives them more tools in their toolbox,” she said. After listing a site, the EPA can order a potentially responsible party to pay for the cleanup.

Under Trump, the EPA has considered but not yet finalized a hazardous designation for the two most well-studied PFAS types: PFOA and PFOS. The Biden campaign has promised to follow through on that proposal, though it hasn’t specified which types of the chemicals it would address.

“That’s really going to spike litigation,” said John A. Sheehan, a lawyer at Cohen Milstein Sellers & Toll PLLC in Washington.

Clearer Liability

At the same time, the change could make PFAS liability more straightforward for water utilities and companies dealing with cleanups—providing a clear process for pulling in anyone who might be responsible for a site’s contamination and then divvying up the costs, Henderson said.

Without the designation, the EPA or another party attempting to compel cleanup must prove that the chemicals pose an “imminent or substantial danger to the public health or welfare.” That additional burden wouldn’t apply if the chemicals were designated hazardous, said Todd C. Fracassi, partner at Troutman Pepper Hamilton Sanders LLP in Detroit.

PFAS manufacturer 3M Co. is likely to be ensnared in legal fights over PFAS-focused Superfund cleanups, along with E.I. DuPont de Nemours & Co., Chemours Co., and other chemical companies, Height LLC analyst Josh Price said.

3M spokesman Sean Lynch said it’s premature for the company to comment on the prospect of a hazardous designation until the EPA publishes a proposed rule, and said “the same rigorous and scientific hazardous substance evaluation process applied to other substances should apply to PFOA and PFOS.”

DuPont and Chemours didn’t respond to requests for comment.

Cleanup Expenses

The president-elect’s pledge to set caps on PFAS in drinking water will also send a jolt through the litigation landscape, prompting new claims and narrowing some defensive arguments.

Biden’s campaign over the summer committed to setting enforceable limits for PFAS under the Safe Drinking Water Act, an action that would expand on the EPA’s current unenforceable health advisory levels of 70 parts per trillion for two types of the chemicals. The Trump administration has been working on a proposal for binding limits, but hasn’t finalized anything.

Setting the so-called maximum contaminant levels, or MCLs, under the law would require water utilities to make significant investments in filtration systems to target certain PFAS in their water supplies. And they’ll be looking for big chemical companies to cough up money for some of the costs, Cohen Milstein’s Sheehan said.

He added that many water utilities are already incurring PFAS cleanup expenses—either to meet the EPA’s existing unenforceable standards or to comply with strict state-level rules that are already in effect. Some have gone to court to try to get costs covered by 3M, DuPont, and other companies. Setting MCLs “adds more fuel to the fire,” he said, encouraging more utilities to attempt to defray cleanup costs by suing the companies responsible for the chemicals.

The costs are “no longer hypothetical” for water utilities if Biden follows through on his pledge, Height LLC’s Price said.

“The question becomes, who’s going to pay for it?” he said. “I would expect a second wave and even a third wave of litigation stemming from this.”

While some utilities will go after local industrial sources releasing PFAS into nearby waterways, many will opt to target 3M and other PFAS creators directly, alleging that those companies knew the chemicals’ risks before disseminating their products, Sheehan said.

3M supports enforceable limits for PFOA and PFOS in drinking water, the company’s spokesman said. DuPont and Chemours didn’t respond to requests for comment.

‘Adds Validity’

Strict federal limits on certain types of PFAS in drinking water will not only feed new lawsuits; it will also affect how companies respond to new and ongoing enforcement actions, said Baker Donelson attorney Ralph A. DeMeo in Tallahassee, Fla., who represents Florida airports dealing with PFAS issues.

Companies facing enforcement actions at the state level can currently point to the EPA’s “equivocation” on PFAS policies and the unenforceable nature of federal advisory guidelines to argue that state officials are overstepping by mandating compliance with numbers that aren’t backed by a full rulemaking process or scientific analysis, DeMeo said. That isn’t as compelling a defense if strict federal limits are finalized.

“We would still have that ability to make those arguments,” he said, “but it’s a little bit more of a challenge when that number has been subject to the stringent rulemaking requirements, and that becomes a standard.”

Clear federal regulations will also fuel additional product liability cases focused on PFAS makers and users up and down the supply chain, Height’s Price said. Many existing lawsuits have prompted legal and scientific debates about the chemicals’ harm, but federal action “adds validity to plaintiffs’ claims,” he said.

“One thing that could cut through the murkiness here is having federal regulation,” he said, “an MCL or CERCLA designation that this concentration is harmful to humans.”

To see the latest updates on state-level PFAS regulations and legislation, check out Bloomberg Law’s PFAS State Activity Tracker here.

To contact the reporters on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com; Sylvia Carignan in Washington at scarignan@bloombergindustry.com

To contact the editor responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com

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