PFAS Bans and Restrictions are the Future

On April 21, 2022, Maryland signed the George “Walter” Taylor Act (the “Act”).^[1] Named after a firefighter who lost his life after repeated exposure to Per- and Polyfluoroalkyl Substances (PFAS) in fire-fighting foam. The Act bans PFAS in Class B fire-fighting foam, rugs, and food packaging while placing other restrictions on products that contain PFAS, all set to take into effect in 2024.^[2] Meanwhile, in Massachusetts, an interagency panel on PFAS concluded its extensive investigations on PFAS and the panel released its final report.^[3] The panel’s report highlighted the risks of PFAS exposure and provided several recommendations to regulate PFAS, including a phase-out of PFAS chemicals in consumer products such as textiles, food packaging, and children’s products.^[4] In Maine, the state legislature passed a bill to ban applying septage – waste material contained in septic tanks – as fertilizer to farms if the water on-site or nearby contains excessive levels of PFAS.^[5] States across the country are likely to pass more PFAS legislation as public authorities continue learning more, publishing guidance, and regulating this class of chemicals.^[6]

PFAS are a class of chemicals known for their water-resistant characteristics that break down very slowly in organisms and the environment.^[7] Colloquially known as “forever chemicals,” there has been growing concern of the ubiquitous presence of PFAS^[8] and the potential adverse health effects exposure to PFAS may have, including increased risk for some types of cancer.^[9]

Two people affected by cancers allegedly caused by PFAS exposure are Sandy Wynn-Stelt and her late husband, Joel R. Stelt, who resided in Belmont, Michigan.[10] Ms. Sandy Wynn-Stelt alleges that the couple developed thyroid and liver cancers due to the operations of Wolverine World Wide Inc., a large shoe manufacturer with a factory in Belmont, contaminating the local drinking water, and thereby exposing the couple to excessive PFAS levels.^[11] Seeking to recover medical expenses for herself and funeral costs following the death of her husband, Ms. Wynn-Stelt sued Wolverine for allegedly dumping PFAS-laden tannery waste into the local drinking water.^[12] 3M, the alleged manufacturer of the PFAS used by Wolverine, was also a defendant in the lawsuit.^[13] While Wolverine and 3M’s liability for the Stelts’ cancers remains unclear, Ms. Wynn-Stelt’s doctor did discover that the PFAS level in her blood was over 1000 times EPA’s non-binding health advisory of 70 parts per trillion (ppt).^[14] Although Ms. Wyyn-Stelt’s exposure to PFAS was abnormally high, she is not the only one who has been exposed to PFAS. The National Institute for Environmental Health Science (NIEHS) and the Center for Disease Control (CDC) report that 97% of the United States population has had some degree of PFAS exposure.^[15] The prevalence and potential risks of PFAS exposure give credence to the rising public concern around these chemicals and increased calls to regulate them.

As a result of the prevalence and potential risks of PFAS, there have been several high-profile class action lawsuits with more pending cases filed against PFAS manufacturers and users throughout the country. As featured in the film Dark Waters,^[16] DuPont, a chemical company that manufactures PFAS, has settled numerous class action lawsuits with various plaintiff classes over PFAS exposure, including a recent $4 billion settlement across DuPont and its spinoff companies in January 2021.^[17] 3M, the main manufacturer of PFAS, settled a lawsuit filed by the State of Minnesota for $850 million in which Minnesota alleged that the company’s production of PFAS chemicals damaged drinking waters and natural resources in the state, resulting in PFAS exposure and related injuries.^[18] More litigation is expected against PFAS manufacturers and users.^[19] As recently as March 7, 2022, the U.S. District Court for the Southern District of Ohio certified a class of anyone subject to Ohio law with at least 0.05 ppt of PFAS in their blood as part of a lawsuit against DuPont, 3M, and others.^[20] PFAS manufacturers and other users face ongoing civil liability as pending cases are litigated throughout the country by plaintiff classes that allege exposure to PFAS.

On the other hand, many companies have voluntarily phased out certain PFAS chemicals from their products, and as a result, the CDC also reports that PFAS levels in blood samples have gone down since the early 2000s.^[21] Some scientists say that the concerns around PFAS are an exaggeration, and the chemicals are likely safer than not with evidence to the contrary being, at best, inconclusive.^[22] Industry groups are also critical of the blanket bans on PFAS as being motivated primarily by bias from activist groups and without regard to the actual science which, at least so far, has confirmed few if any links between current levels of PFAS exposure and adverse health impacts.^[23] Several industry studies suggest that only several hundred PFAS chemicals, not the entire PFAS class containing thousands of different chemicals, are “commercially relevant” and recommend more targeted regulation of specific PFAS chemicals.^[24] Recent scholarly research categorizes 1,400 of the PFAS chemicals into 200 different categories and sub-categories based on their usage, casting doubt on whether a broad immediate ban on PFAS is practical.^[25] Nonetheless, there is still a significant gap in the literature when it comes to links between PFAS exposure and adverse health or environmental effects, requiring further research.^[26]

To address the current gap in research and regulation, on October 18, 2021, the Environmental Protection Agency (EPA) laid out a strategic roadmap to address PFAS.^[27]  The strategic roadmap focuses on the three action steps: researching links between PFAS exposures and effects, restricting PFAS from entering the environment at excessive levels, and remediating PFAS contamination that has already occurred.^[28] As part of the restrictions, the EPA has committed to holding polluters accountable for the release of hazardous amounts of PFAS.^[29] The EPA’s strategic roadmap points to increased federal regulatory oversight and scrutiny of PFAS manufacturing and use in the near future. Whether the developing regulatory framework will supersede common law claims as a tool for accountability, as in other areas of environmental law,^[30] remains to be seen, but some practitioners believe that PFAS could become the next asbestos as a specialized area of tort practice.^[31]

The emerging PFAS regulatory landscape and litigation environment highlights the tension between the usefulness of many PFAS chemicals – including those used in life-saving fire-fighting foams – and the growing body of evidence that PFAS chemicals may be linked to adverse health and environmental outcomes. For the manufacturers and users of PFAS, this new legal regime risks exposure to potentially limitless liability and regulatory penalties due to the ubiquitous presence of PFAS. For the public, research and regulation will hopefully provide answers and a sense of safety while class action lawsuits remain a powerful tool to redress harms. For practitioners and professionals, continuing to keep up with the latest research and regulatory trends will become a priority as PFAS will likely continue to garner more attention. For everyone, the new world of PFAS regulations is just getting started with more PFAS bans and restrictions looming on the horizon. Given the widespread exposure of PFAS, the outcomes of the new regulatory landscape, whether positive or negative, will affect the livelihoods of most people in the United States and beyond for generations to come.

[1] State of Md., Governor’s Press Release: Bills to be Signed by the Governor on April 21, 2022, 1 (Apr. 21, 2022), www.governor.maryland.gov/wp-content/uploads/2022/04/Press-Release-Abbreviated-Signed-April-21-2022.pdf.

[2] H.B. 275, 2022 Leg., 444th Sess. (Md. 2022).

[3] Cmmw. of Mass., PFAS Interagency Task Force Final Report, (last visited Apr. 25, 2022), https://malegislature.gov/Bills/192/SD3117/Bills.

[4] SD. 3117, 192nd Gen. Ct., at 6 (Mass. 2022).

[5] H.P. 1417, 130th Leg., 2d Reg. Sess. (Me. 2022).

[6] See EPA, U.S. State Resources about PFAS, www.epa.gov/pfas/us-state-resources-about-pfas (last visited Apr. 25, 2022).

[7] EPA, PFAS Explained, www.epa.gov/pfas/pfas-explained (last visited Apr. 25, 2022).

[8] Isabella G. Paz, PFAS: The ‘Forever Chemicals’ You Couldn’t Escape if you Tried, N.Y. Times (Apr. 12, 2022), https://www.nytimes.com/2022/04/12/us/pfas-chemicals-fast-food.html.

[9] ATSDR, What are the health effects of PFAS?, CDC, www.atsdr.cdc.gov/pfas/health-effects/index.html (last visited Apr. 25, 2022).

[10] Pat Rizzuto, The Doctor Will See the PFAS-Exposed Plaintiff Now (1), Bloomberg Law (Oct. 26, 2021), news.bloomberglaw.com/environment-and-energy/the-doctor-will-see-the-pfas-exposed-plaintiff-now.

[11] Id.

[12] Id.

[13] Id.

[14] Id.; see also EPA, Fact Sheet: PFOA and PFOS Drinking Water Health Advisories, 2 (2016), https://www.epa.gov/sites/default/files/2016-06/documents/drinkingwaterhealthadvisories_pfoa_pfos_updated_5.31.16.pdf.

[15] NIEHS, Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS), NIH, www.niehs.nih.gov/health/topics/agents/pfc/index.cfm#:~:text=One%20report%20by%20the%20Centers,blood%20of%2097%25%20of%20Americans (last visited Apr. 25, 2022).

[16] Focus Feature, Dark Waters Movie, www.focusfeatures.com/dark-waters (last visited Apr. 25, 2022).

[17] Monica Amarelo, DuPont, Chemours and Corteva Reach $4 Billion Settlement on ‘Forever Chemicals’ Lawsuits, Env’t Working Grp. (Jan. 22, 2021), www.ewg.org/news-insights/news-release/dupont-chemours-and-corteva-reach-4-billion-settlement-forever-chemicals.

[18] Minn. 3M PFAS Settlement, 3msettlement.state.mn.us/ (last visited Apr. 25, 2022).

[19] Pat Rizzuto, ‘Buckle Up’ for PFAS Regulation, Litigation in 2022, Lawyers Say, Bloomberg Law (Dec. 29, 2021) news.bloomberglaw.com/environment-and-energy/buckle-up-for-pfas-regulation-litigation-in-2022-lawyers-say.

[20] Taft Stettinius & Hollister LLP, Taft Wins Class Certification in PFAS Suit (Mar. 10, 2022) www.taftlaw.com/news-events/news/taft-wins-class-certification-in-pfas-suit.

[21] ATSDR, PFAS in the US Population, CDC, www.atsdr.cdc.gov/pfas/health-effects/us-population.html#:~:text=Most%20people%20in%20the%20United,PFAS%20in%20the%20U.S.%20population (last visited Apr. 25, 2022).

[22] See e.g. Susan Goldhaber, PFAS: Fear and Misinformation Runs Wild, Am. Council on Sci. & Health (Apr. 22, 2022), https://www.acsh.org/news/2022/04/22/pfas-fear-and-misinformation-runs-wild-16263.

[23] Clare Goldsberry, A Deeper Dive Into PFAS, and Why Bans Are Misguided, Plastics Today (Aug. 4, 2020), www.plasticstoday.com/packaging/deeper-dive-pfas-and-why-bans-are-misguided.

[24] Julia John, Industry study suggests PFAS numbers exaggerated, Chem. Watch (May 27, 2021), chemicalwatch.com/272148/industry-study-suggests-pfas-numbers-exaggerated%C2%

[25] Juliane Glüge et al., An overview of the uses of per- and polyfluoroalkyl substances (PFAS), 22 Env’t Sci.: Processes & Impact 2345, 2345 (2020), pubs.rsc.org/en/content/articlelanding/2020/em/d0em00291g.

[26] Commc’ns & Publ’g, USGS Releases Strategy for Addressing PFAS Science Gaps, USGS (Dec. 22, 2021), www.usgs.gov/news/national-news-release/usgs-releases-strategy-addressing-pfas-science-gaps.

[27] EPA, PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024, www.epa.gov/pfas/pfas-strategic-roadmap-epas-commitments-action-2021-2024 (last visited Apr. 25, 2022).

[28] EPA, PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024, 5 (2021) www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf.

[29] Id., at 7.

[30] R. T. Taylor, The Obsolescence of Environmental Common Law, Ecology L. Q.: Currents (May 9, 2013), www.ecologylawquarterly.org/currents/the-obsolescence-of-environmental-common-law/#_edn1.

[31] See e.g. Gregory A. Cade, Could PFAS Liability Issues Become ‘The Next Asbestos’ in Terms of Claims?., Att’y at L. Mag. (Apr. 27, 2021), https://attorneyatlawmagazine.com/could-pfas-liability-issues-become-the-next-asbestos-in-terms-of-claims%E2%80%AF; but see e.g. Daniel Fisher, Is PFAS the next asbestos? Probably not, lawyers say, but it may come close, Legal Newsline (July 19, 2019), legalnewsline.com/stories/512772775-is-pfas-the-next-asbestos-probably-not-lawyers-say-but-it-may-come-close.