Perfluorinated Chemicals: Litigation and Regulatory Update

September 15, 2017

This Alert supplements our January 2017 update on developments in regulation and litigation related to perfluorinated chemicals (PFCs).  In January, we reported that a jury had awarded $10.5 million in punitive damages to an Ohio man who alleged that perfluorooctanoic acid (PFOA) released by E.I. du Pont de Nemours and Company (DuPont) from its Washington Works facility had contaminated groundwater and caused his testicular cancer.  In the wake of that verdict, DuPont and Chemours Co. agreed in February to pay $671 million to resolve approximately 3,500 remaining claims pending in the multidistrict litigation in Ohio federal court.  Chemours also agreed to annually pay the first $25 million of future PFOA-related costs not covered by the settlement for the first five years after the settlement, and if that amount is exceeded, DuPont agreed to pay up to $25 million annually.  The plaintiff class was comprised of individuals with one of six medical conditions certified by the so-called “C8 Science Panel” (C8 is another name for PFOA).  We note that the chemical industry voluntarily ceased producing and using PFCs in 2015.  The following is a brief summary of noteworthy subsequent developments.

Hoosick Falls, NY.  PFOA contamination in Hoosick Falls, New York continues to be the focus of a great deal of attention by regulators and others, particularly as litigation against Saint-Gobain Performance Plastics Corp. and Honeywell International proceeds.  In June, the New York State Department of Health released a study of cancer incidents in Hoosick Falls between 1995 and 2014 and concluded that there were no statistically significant incidents of cancers associated with PFOA exposure.  In July, the USEPA added the Saint-Gobain Hoosick Falls site to the Superfund National Priorities List.  In August, a federal court denied a motion to dismiss filed by Saint-Gobain and Honeywell in a toxic tort action filed by Hoosick Falls residents, although it granted the motion with respect to private trespass and nuisance claims brought by residents on municipal water.  Benoit v. Saint Gobain Performance Plastics Corp., 2017 BL 268907, N.D.N.Y. No. 16-cv-00930 (8/2/17).  The court stated that those theories do not apply when water is supplied by municipalities. 

Vermont.  In April, Saint-Gobain agreed to pay $964,000 to fund design work to bring municipal water to homes in Bennington County, Vermont, after 266 private wells were found to be contaminated with PFOA.  The contamination was linked to a facility that was operated by ChemFab Corp. that made chemicals used to coat fabrics.  Saint-Gobain acquired the facility in 2000 and closed it in 2002.  In June, while Saint-Gobain and the state were in negotiations over payment for extending water lines to affected homes, Governor Phil Scott signed a bill requiring companies responsible for contamination to pay for water line extensions.  Shortly thereafter, in July, Saint-Gobain and the State reached a $20 million settlement to extend water lines to approximately 200 homes.  

Alabama.  In May, the municipal water system in Centre, Alabama filed suit against 3M, DuPont, and more than 30 carpet manufacturers, seeking damages to cover the cost of upgrading its water filtration system, as well as other expenses.  The carpet makers were sued in connection with their use of PFCs for stain resistance and water-blocking qualities at nearby facilities in Dalton, Georgia.  The suit was similar to a 2016 suit filed by Gadsden, Alabama water authority.

Medical Monitoring Claims.  A case involving PFC contamination pending before the 3rd Circuit Court of Appeals may create a circuit split over whether claims for medical monitoring brought after remedy selection are barred at sites being cleaned up under the Comprehensive Response, Compensation and Liability Act (CERCLA).  In a July 6th ruling, the U.S. District Court for the Eastern District of Pennsylvania held that it was barred from considering the plaintiffs’ state law claims for medical monitoring under CERCLA Section 113(h), which bars federal judicial review of challenges to removal or remedial actions except for certain enumerated purposes.  Giovanni v. U.S. Dept. of Navy, Case 2:16-cv-04873-GPB (7/6/17).  The Court reasoned that Section 113(h) applied because “monitoring” is included in the definition of “remedial action.”  The Court stated that requiring the Navy to pay for medical monitoring and to conduct a health effects study would interfere with ongoing cleanup activities, in contravention of CERCLA.  The decision runs contrary to prior decisions of the 9th Circuit and the Southern District of Ohio, which held that courts can order medical monitoring because it is not a recoverable response cost under CERCLA.

Drinking Water Regulation.  In March, the New Jersey Drinking Water Quality Institute, an advisory committee established by statute, recommended a limit of 14 parts per trillion.  In May, the Minnesota Department of Health adopted a PFOA advisory limit of 35 parts per trillion for drinking water—half of the current early EPA advisory of 70 part-per-trillion—and a PFOS limit of 27 parts per trillion.  In June, Vermont adopted a limit of 20 parts per trillion.  And in August, the Pennsylvania Environmental Quality Board voted to consider a maximum contaminant level for PFOA in response to a petition from the Delaware Riverkeeper Network, an advocacy group.  The group proposed a six-part per-trillion standard, well below the limits set by other states. 

It appears that PFCs will remain a continued area of focus for regulators and litigants, particularly in light of the DuPont/Chemours settlement and the continuing uncertainty around the setting of health-based drinking water standards.  We will continue to monitor developments with regard to these and other emerging contaminants.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Eric Rothenberg, an O’Melveny partner licensed to practice law in New York and Missouri, and John Rousakis, an O’Melveny counsel licensed to practice law in New York and New Jersey, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted. 

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