Perfluorinated Chemicals: Litigation and Regulatory Update

This Alert supplements our September 2017 update on developments in regulation and litigation relating to perfluorinated chemicals (PFCs), which have been used in non-stick coatings, firefighting foams, and to stain-proof and waterproof a variety of household products.

Litigation. In September, we reported that E.I. du Pont de Nemours and Company (DuPont) agreed to pay $671 million to resolve approximately 3,500 claims alleging exposure to PFCs in multidistrict legislation in Ohio federal court. DuPont is now the target of a suit brought by the Ohio Attorney General, who filed an action in February 2018 alleging negligence, nuisance, and trespass in connection with alleged discharges, from 1950-2013, of perfluorooctanoic acid (PFOA) from DuPont’s facility in Parkersburg, West Virginia into the environment near the West Virginia/Ohio border. The suit seeks remediation costs, natural resource damages, and punitive and other damages.

Also in February, 3M Company agreed to an $850 million settlement with the State of Minnesota on the eve of trial to resolve allegations that it disposed of chemicals from its PFC manufacturing process at sites near Minneapolis for more than 40 years, contaminating drinking water and wildlife habitat. The state claimed that 3M knew the chemicals were harmful but concealed the effects from regulators and misrepresented the science regarding their health impacts. The State brought its action in 2010 under its site remediation and clean water statutes, and under tort theories, including nuisance, negligence, and trespass, and sought over $5 billion in natural resource damages. It is the third largest natural resource damage recovery in US history.

The settlement payment will be used to fund drinking water projects in the suburbs east of St. Paul, and to enhance water resources, wildlife habitat, and outdoor recreational activities in that area or downstream of that area on the Mississippi and St. Croix Rivers. The State indicates that such projects may include restoring and protecting fish and wildlife habitat, building boat ramps and fishing piers to provide access to fish unaffected by PFC contamination, or cleaning up contaminated river sediments. 3M will continue to pay for remediation costs at three PFC disposal sites under a 2007 Consent Order.

Drinking Water Regulation. States continue to struggle in their efforts to set meaningful PFC drinking water standards in the absence of an enforceable federal standard. In 2016, USEPA set health advisory levels of 70 parts per trillion for PFOA and perfluorooctane sulfonate (PFOS), but did not set an enforceable drinking water standard. In November 2017, New Jersey announced that it will become the first state to adopt Maximum Contaminant Levels requiring testing of public drinking water systems for PFOA and perfluorooctanoic acid (PFNA). The levels are 14 parts per trillion of PFOA and 13 parts per trillion for PFNA. On the other end of the spectrum, in January 2018, Michigan adopted the federal advisory level of 70 parts per trillion as its enforceable drinking water standard for PFOA and PFAS.

In January 2018, state regulators, acting through the Association of State Drinking Water Administrators, asked USEPA and the Centers for Disease Control and Prevention to work with the states to address a number of concerns relating to PFCs and polyfluoroalkly substances (collectively referred to as PFAS). The regulators expressed concern that without a unifying message from USEPA, states will continue to set inconsistent standards, leading to confusion, delay, or no action at all on remedial efforts. The state regulators also asked USEPA and the CDC to conduct more health effects research and develop consistent risk levels for known and unknown PFAS, and to increase funding for analyses of drinking water for PFAS and substitute compounds to identify any potential impacts of new chemicals on groundwater, and to understand potential health risks.

For its part, USEPA has not committed to developing a federally enforceable standard, although a senior EPA water official stated in March that it was an issue that the USEPA Administrator “will certainly think about,” and noted that setting a standard would be a “multi-year process.”¹ The official also indicated that USEPA hopes to issue health advisories this summer for “GenX,” a next generation PFC substitute developed by DuPont. Finally, new defense legislation signed into law in December authorizes at least $7 million for a federal study on the human health impacts related to PFCs in drinking water near military facilities. The timing of that study is unclear.

PFCs will remain a continued area of focus for regulators and litigants, particularly in light of the 3M settlement and the continued uncertainty around the setting of enforceable drinking water standards. We will continue to monitor developments with regard to these and other emerging contaminants.