PFAS Litigation: Where it’s Gone & Where it’s Going.
May 13, 2024
PFAS are a nationwide hot-button issue.
Our last blog, A PFAS Update: The Forever Chemicals, discussed the history, use and effects of PFAS in our everyday lives; that narrative ended with a question: Why PFAS are becoming a hot-button, nationwide, environmental issue?
In a word, the reason is litigation.
Namely, litigation relating to PFAS contamination and the ill-effects of PFAS compounds on both humans and the environment has thrust this class of man-made compounds front and center.
This blog will focus on some of the generalized litigation highlights — the what, when, and where of the larger, more consequential cases. This qualitative summary is certainly not all-inclusive, as the cases are very complex and literally numbered in the thousands; however, this selection will hopefully give you a sense of where the litigation has been, where it may be headed, as well demonstrating the enormous amount of money that is in play, climbing well into the multi-billions of dollars in proffered and approved settlements, with no foreseeable end apparently in sight.
Eight representative PFAS litigation cases are summarized below.m
The Beginnings: 1998 DuPont Litigation.
The beginnings of the string of impact-litigation regarding PFAS compounds began in 1998, 26 years ago, in Parkersburg, West Virginia.
The case first involved a livestock farmer, whose herd of cattle were getting sick — exhibiting significant birth and later-life deformities and dying for unknown reasons from never-seen maladies. Upon investigation, it became apparent that the local populace was also being subject to unusual physical and medical ailments. And the source of the problems appeared to point toward a nearby DuPont chemical manufacturing plant.
Over time, the litigation grew into a class-action matter, with the plaintiff group, in the end, expanding to approximately 3,500 residents in the Parkersburg area. After years of delays and costly litigation, it was determined that DuPont (along with DuPont spinoff firms Chemours and Corteva) caused widespread surface water and groundwater contamination resulting from their dumping up to 1.7 million pounds of PFAS chemicals (namely the chemical PFOA, used in the making of Teflon) into the Ohio River, along with unlined surface lagoons and landfills in the area around the DuPont plant, for a period of fifty years, between 1953 and 2003. This dumping continued even after the litigation commenced. The livestock and local residents ended up drinking PFOA-contaminated water for years, reportedly resulting in a multitude of deformities and deaths.
Through litigation discovery, it was determined that DuPont manufactured PFOA at this local plant since the 1950s and knew, at least as early as 1965, that PFOA was highly toxic.
After almost 20 years of litigation and extensive medical studies in the local community, DuPont agreed to pay $670 million in damages for community medical monitoring (with $300 million more to cover earlier medical monitoring studies), along with another $83 million for drinking water supply contamination and associated environmental restoration. DuPont, Chemours, and Corteva committed another $4 billion to cover future liabilities for past PFOA and other PFAS use. This lawsuit, in many ways, provided a roadmap for similar, future litigation cases across the country.
This DuPont litigation case was the basis for the 2019 movie Dark Waters.
The final settlement numbers amounted to over $5 billion in the aggregate... payout numbers that big can attract all sorts of attention. And they did. A wave of litigation cases soon followed against DuPont, 3M (another major PFAS manufacturer/supplier), and other secondary players.
2005: Multi-State 3M and DuPont Fire-Fighting Foam Suit, Stuart, Florida.
This was/is a major milestone lawsuit with respect to PFAS manufacturer culpability; in this case the maker was 3M and the issue at hand was PFAS-containing firefighting foam, known as Aqueous Film Forming Foam (AFFF). The litigation extended over an 18-year period, from 2005 to 2023.
3M was the primary manufacturer of AFFF in the United States (which contains PFOA and other PFAS compounds — making 3M the primary manufacturer of PFOA as well), producing and marketing AFFF from the 1940s until the early 2000s. AFFF contained PFAS compounds due to their remarkable resistance to heat and their ability to quickly smother fuel fires. AFFF was used extensively by airports, fire departments, and the military, including military bases, where fires and fire-fighting drills/training resulted in AFFF being used, with the PFAS-infused foam seeping into the ground afterward, contaminating aquifers beneath the testing and training sites. When many people hear or read about PFAS, they first think of firefighting foam as the only/primary PFAS use, which is inaccurate (refer to the thousands of ubiquitous consumer products we all use every day which also contain PFAS, as outlined in our prior blog: A PFAS Update: The Forever Chemicals. A link is available at the end of this blog.
The litigation began in Minnesota in 2005, expanding to 75 separate, but related, AFFF lawsuits by 2018, and exploding to 3,000 individual AFFF-Centric lawsuits as of 2022. As the volume of litigation grew, it morphed into a class-action-like matter involving a large number of separately filed lawsuits against 3M and DuPont, including over 300 cities/towns and 18 separate states (including Arizona, Colorado, Connecticut, Hawaii, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, and Wisconsin). As well as Washington DC, Puerto Rico, and the Northern Mariana Islands, encompassing approximately 18,000 plaintiffs.
Due to the unwieldy volume of the similar AFFF-related cases, the suits were consolidated in Federal Court in Charleston, South Carolina and an individual AFFF firefighter suit involving Stuart, Florida was chosen as the first to go to trial, to serve as a case consolidation action. Stuart used AFFF for firefighter training once per week between 1990 and 2016, with residual AFFF 'hosed down’, to allow the foam to seep into the ground. All 26 municipal drinking water wells in/around the Stuart training area were ultimately contaminated with PFAS. Stuart sued 3M for $115 million to both remediate soils and install, expand, and operate potable water filtration systems, over the long-term (40 years).
Jury selection began on June 5, 2023. On the eve of going to trial, 3M agreed to a global settlement with all 18,000 plaintiffs encompassing all the related AFFF suits of between $10.5 billion to $12.5 billion, to be paid over 13 years, to address public water system remediation in the affected communities, now and in the future. Almost all of the plaintiff state attorney generals, including California, initially rejected the 3M settlement, objecting to what they believed were onerous, one-sided terms, conditions, and future liability limitations 3M baked into their proffered, multi-billion dollar settlement, and stating the $12.5 billion amount was far too low a dollar figure to absolve 3M of future liability. Ultimately, all the objecting states signed onto the settlement, when the 3M payment terms were rewritten in a more plaintiff-favorable manner and all future 3M litigation on PFAS matters unrelated to AFFF and public water supply systems were permitted to proceed outside of the limited extent of the multi-billion dollar settlement.
As part of the same litigation, DuPont, Chemours, and Corteva agreed to jointly pay an additional $1.185 billion in AFFF-related liability, as part of the nationwide class-action settlement relating to water system-related claims. Said settlement did not cover small water systems, federal water systems, or personal injury claims, which could proceed separately.
These settlements are simply one slice of a much larger PFAS pie that was, and still is, subject to extensive future litigation exposure to 3M, DuPont, Chemours, Corteva, and others.
2010: Minnesota 3M Litigation.
After 8 years of protracted litigation, in 2018, 3M entered into a $850 million settlement (in the form of a restricted grant) with the state of Minnesota for drinking water and Natural Resource Damages (NRD) claims by the State for PFAS discharges and resultant contamination from the 3M Cottage Grove, Minnesota manufacturing plant. Of the $850 million, $130 million was paid for legal fees and other expenses.
The settlement fund was to be used to address testing and monitoring of potable water supplies and wastewater plant discharges for PFAS compounds, along with enhanced aquatic resources, wildlife habitat, and enhanced outdoor recreational opportunities in the affected areas. As part of the settlement, 3M stated they acted responsibly and admitted no wrongdoing, as is typical in settlements like this.
2017: DuPont West Virginia/Ohio PFOA Litigation.
DuPont reached a global settlement on PFOA litigation involving approximately 3,550 lawsuits relating to personal injury issues in Ohio and West Virginia resulting from PFAS discharges at a former Teflon manufacturing plant.
The settlement included $670 million in damages, paid by DuPont and Chemours, a DuPont PFAS spinoff firm (created in 2015). As part of the settlement, both companies denied any wrongdoing. Outside of the settlement, Chemours agreed to pay $25 million annually, with an additional $25 million annually by DuPont, if needed for future liabilities, for a five-year period.
March 2019 & November 2020: New Jersey Directive Litigation.
This is an important document for parties operating or conducting business in the state of New Jersey.
In 2019, the New Jersey Department of Environmental Protection (NJDEP) Commissioner issued a Directive to the primary manufacturers/suppliers of PFAS compounds in New Jersey, along with their insurers:
DuPont, and their spinoff company Chemours;
3M;
Dow; and
Solvay Specialty Polymers (a Belgian, specialty plastics/coatings manufacturing firm).
The 16-page NJDEP Directive basically laid out the history of PFAS manufacturing and use in New Jersey and how the aforementioned firms were the primary players in the manufacture and sale of said compounds. It then proceeded to state that under various New Jersey environmental regulatory statutes, these companies were responsible for significant natural resource damages and contamination, including drinking water, groundwater, surface water, air, soil, and sediments, as well as impacts to plants and fish (both subject to bioaccumulation) by PFAS, including, but not necessarily limited to, PFNA, PFOA, PFOS and GenX compounds (all common, widely manufactured PFAS compounds in regular use across the consumer product spectrum).
The Directive required the listed companies to discuss with the NJDEP good-faith estimates to comply with Statewide PFAS cleanup standards and establish funding source(s) for same. Failure to comply with the Directive would expose the firms to treble-damage claims by the State of New Jersey for any PFAS-related cleanup efforts.
The Directive was followed by New Jersey filing suit in November 2020 against the listed parties.
To date, based upon the Directive and lawsuits, it appears only Solvay has negotiated a proposed settlement with the NJDEP regarding past damages.
Specifically, in June 2023, Solvay and the State proposed a settlement of $393 million relating to contamination emanating from a Solvay principal specialty plastics manufacturing plant in West Deptford, New Jersey (owned by Solvay since 1990), covering an area of approximately 37 square miles of contamination (i.e., groundwater, surface water, soil, and air dispersal-related discharges). It was reportedly the largest single payment ever by a polluter in New Jersey. Of the $393 million, $104 million, was earmarked for legal fees and NJDEP 'enforcement efforts'.
Said settlement required Solvay to:
Undertake PFNA and PFOA remediation of their West Deptford, New Jersey plant (the PFNA levels detected at the plant are reportedly the highest levels recorded in the world) — as of March 2019, the NJDEP had spent $3.1 million on PFAS-related environmental investigatory work at the Solvay facility;
Address natural resource damages (NRD) to the environment;
Provide support for local public water system upgrades;
Address treatment systems for individual potable wells.
Although this proposed settlement dollar figure is large, and, on paper, it appears to be a clear 'win' for the State of New Jersey, the devil is in the details. To that end, there are impacted parties/municipal entities that are aggressively disputing the nature and mechanics of this Solvay settlement, suggesting the dollar amount is much too low to address the noted contamination and the allocation formula of same is severely flawed. Therefore, this initial Solvay settlement is reportedly still very much in flux and subject to its own subset of third-party litigation.
The remaining four firms (DuPont, Chemours, Dow, and 3M) have reportedly not yet entered into formal/finalized settlements with the State of New Jersey, but it is suspected the dollar amounts will be similar, if not substantially larger, than the proffered Solvay settlement figure. This litigation is still very much in play. DuPont's exposure includes operating the massive Chamber Works facility in Pennsville and Carney's Point, New Jersey (from 1891 to 2015); in 2015 the facility was transferred from DuPont to Chemours. The groundwater contamination alone emanating from this large industrial complex is reported to extend at least 5 miles from the Chamber Works complex. The contamination is a combination of PFAS compounds, including PFOA, PFNA, and GenX. Another primary DuPont plant earmarked in the NJDEP Directive includes a specialty chemical manufacturing plant in Sayreville, operating since 1904 (and making Teflon since the 1970's); PFOA contamination was first identified at this location circa-2006.
Aside from the settlement negotiations with the State of New Jersey, a key takeaway from this matter for New Jersey-centric parties is that private-sector third parties in New Jersey, when tasked with the remediation of PFAS compounds, may be able to use this Directive in certain instances to transfer, or at least share, remedial costs with one or more of the listed Directive entities. This is an important factor to keep in mind when parties under separate directives from the NJDEP to clean up PFAS are looking for potential contributors. Of course, each PFAS remedial matter is site and fact-specific, but this Statewide New Jersey Directive to five key PFAS manufacturers/distributors is an important potential tool in the counsel/consultant toolbox when attempting to parse and allocate Responsible Party (RP) contributions.
2022: California 3M, DuPont, and 16 Other Firms, PFAS Lawsuit.
California filed a lawsuit against 18 PFAS manufacturers and suppliers, including 3M and DuPont, for endangering public health, including impacting 146 public water supply systems serving 16 million residents, negatively impacting natural resources, and most importantly, engaging in deceptive practices to hide the effects of PFAS from the public. This last charge has the potential to result in extremely large damages, if successfully litigated or subject to pre-trial settlement. This California suit is believed to be the broadest suit in terms of impacts and damages filed to date, with hundreds of millions, if not billions, of additional dollars at stake.
The lawsuit requests injunctive relief, damages, penalties, restitution, and abatement, including addressing impacts to human health and the environment, via environmental testing, medical monitoring, targeting wastewater treatment plant discharges, landfill leaching, and replacement potable water, among other relief. This massive suit is still in its early stages and the results haven't played out to date.
2023: Rhode Island 3M & DuPont PFAS Lawsuit.
Rhode Island filed an expansive lawsuit against a variety of manufacturers and suppliers of PFAS, including 3M and DuPont, for deceptive practices (similar to California's 2022 suit discussed above), contamination of, and damages to, groundwater, drinking water, surface water, air, soil, wetland, and other natural resources, illegal asset reallocation to avoid liability and a host of environmental and consumer protection law violations. This lawsuit is also in its early stages.
2023: 3M Belgium PFAS Contamination & Settlement Issues.
3M is having problems with PFAS internationally, as well as domestically.
Specifically, Belgian authorities have taken repeated, on/off regulatory action from 2021 to date against 3M for PFAS discharges/contamination via air and water emissions at its plant in the town of Zwijndrecht, south of Rotterdam, resulting in groundwater contamination (with PFAS levels recorded at ten times the legal limit). 3M has pledged $600 million for remediation and to resolve pending litigation in Belgium over the PFAS contamination issues.
In a related action, the overall European Union (EU) is pondering restricting the use of PFAS compounds across their member states; no decisions have been made on this front, but the topic is current, and pending. And a United Nations (UN) Panel has recently labeled PFAS contamination a 'human rights issue'.
Economic Fallout to the PFAS Industry Players.
The manufacturers and producers/users of PFAS products is wide and diverse, and liability exposure has, and will continue, to impact scores of private sector firms; the wave of litigation is nowhere near an end, and will likely ramp up as the future unfolds. This certainly appears to be a long-term storm.
But that being said, there clearly are two major private sector firms who have been subject to the majority of the litigation to date, and will likely be the focus of litigation going forward: DuPont, along with its shed-off corporate entities (Corteva, and especially Chemours), as well as 3M. This small sub-group constitutes what have been identified by plaintiffs and regulators as the major PFAS players, and the major PFAS payers, to date, and they likely will remain so, well into the future litigation and liability landscape.
But even though 3M and DuPont are long-established, successful, publicly-traded firms, with significant financial resources at hand (which is good news for the plaintiffs in the various lawsuits mentioned above, along with the myriad of suits not listed, and pending), the available funds to address PFAS liabilities in the near-term, and long-term, are clearly not limitless. At some point, the private pots of money might run out.
To that end, below is a summary of how the three main players: 3M, DuPont, and Chemours have staked their business decisions with respect to PFAS issues.
3M.
Based upon the brief litigation summary above, which is certainly not all-encompassing, with many larger suits still in process (including California, Rhode Island and New Jersey, among others), thousands of personal injury (PI)-type suits pending (in excess of 10,000 people have made health-based claims) and additional AFFF lawsuits (including firefighters exposed to their fire protection equipment (i.e, pants and coats) containing PFAS, 3M has already committed upwards of $14 billion in litigation payments to a variety of plaintiffs; industry estimates have floated that 3M alone may be responsible for more than $30 billion in litigation-related liability by the end of the 2020s.
Although 3M has historically labeled PFAS compounds as essential for modern life, the 122-year-old firm stopped manufacturing certain PFAS compounds in the early 2000s (namely PFOA and PFOS — two of the most prolifically used compounds) but, continued to manufacture a host of other PFAS chemicals as replacements. However, 3M has recently, publicly stated they will stop making/using forever chemicals by 2025 — all fluoropolymers, due to ongoing litigation and what they characterize as weak consumer spending and increased regulatory hindrances. They have stated/suggested that alternative products are available to replace the PFAS compounds they sell, but they have not provided much detail on what these product actually will be, other than qualitative statements that the compounds will have shorter chemical chains and shorter half-lives. Neither of those characteristics will necessarily mean the compounds will be less toxic than the PFAS compounds of concern that they would be replacing — that toxicological assessment remains to be seen.
DuPont & Chemours.
Based upon the brief litigation summary above, which, again, is certainly not all-encompassing, with many larger suits still in process (including California, Rhode Island, and New Jersey, among others), DuPont and Chemours have already committed upwards of $7 billion in litigation payments to a variety of plaintiffs; DuPont's long-term PFAS liability has been estimated by independent industry experts at $14 billion, or more. DuPont stopped using PFOA and PFOS in 2015.
DuPont moved to limit their future liability by spinning off their PFAS chemical operations under two new corporate entities: Chemours and Corteva, Inc.; DuPont, through internal corporate agreements, has limited its PFAS exposure to spin-offs Chemours and Corteva to $4 billion, up to 2040. That internal, between-firms contractual limitation will likely be challenged by Plaintiffs and regulators.
The Chemours corporate spinoff from DuPont was created in 2015 to create a separate firm that would maintain the rights to manufacture certain PFAS compounds.
Chemours has stated that they will eliminate 99% of all air and water emissions by 2030, but have not provided any substantive details as to how they actually intend to achieve this goal. To replace PFOA, Chemours manufactures a replacement PFAS called GenX, which has been determined by independent toxicological studies to be toxic, similar to the more established PFAS compounds — Chemours has questioned the validity of said studies. Chemours also is the sole producer of a separate PFAS product called PFA, which is used in thin film fluid filtering, pipes, tubes, valves, and pumps (largely to service the semiconductor industry).
Chemours has essentially doubled-down on the continued making and use of PFAS compounds — stating that the products are critical to the semiconductor and electric vehicle/battery markets. To that end, it appears Chemours will not only continue to manufacture PFAS compounds (and Teflon products) but will expand domestic production at an existing North Carolina plant — they also have facilities in the Netherlands and France. This decision to push all-in with PFAS by Chemours, contrary to the other PFAS manufacturers, seems to be based partly on corporate survival — since DuPont spun off Chemours, the new corporate entity receives about 20% of its revenue from PFAS products.
Litigation Summary.
As summarized above, PFAS litigation has been playing out across the country and beyond for the past 26 years, but; in a sense, it is just getting started.
Although we have listed some of the larger, more prominent lawsuits settled/in play with the primary parties above, they do not represent all the activity in this arena. There are literally thousands of lawsuits pending by governmental agencies and private parties, for contamination, resource damages, medical conditions, deceptive practices, and the like, largely (but not exclusively) associated with two specific PFAS compounds, PFOA and PFOS. And it is anticipated the number of suits, and breadth of charges, will increase in the near term. This expensive dance is far from over. Early estimates have pegged the PFAS remedial liabilities alone at $100 billion; it is likely that number will be exceeded when all economic, environmental remediation, consumer protection, and medical-related costs are factored in.
To that end, expect a steady stream of remediation/natural resource damages and medical-related lawsuits to be filed on a continuing basis for years to come. Since there are a small number of firms who manufactured and distributed PFAS, we suspect, at some point, the financial well will start running dry; 3M, DuPont, and Chemours, among others, are large firms with substantial net worth, but for now, the financial spigot seems to be open wide and these private resources are certainly not limitless. At some point, private money may run out.
What's Next?
Our next blog will look at the PFAS regulatory landscape; namely what are the cleanup standards for drinking water, groundwater, and soils that are driving a lot of the litigation dollar settlements, and what are states and the federal government doing to stop PFAS from finding their way into consumer products and the environment to begin with.
Namely, is it better to stop the flow of PFAS at the front end of the manufacturing 'pipe', as opposed to trying to correct it after it has already entered the environment and our bodies.
Stay tuned for answers. Our next blog is coming soon.
A look at some of our past FPAS articles.
In 2020 and again last month, we penned other articles on this emerging group of contaminants, per- and polyfluoroalkyl substances, better known by the umbrella name PFAS. You can access them below:
A PFAS Update: The Forever Chemicals
Please note, the information provided in this newsletter relating to PFAS and associated compounds is strictly for informational purposes only and should not be construed as recommendations or advice on how to treat, remediate or handle PFAS in any manner; our firm assumes no liability of any kind regarding same.