The Impact of PFAS Regulations on Environmental Law

By: Crystal Jackson

In a groundbreaking move, the U.S. Environmental Protection Agency (EPA) has introduced first-ever federal regulations aimed at limiting Per- and polyfluoroalkyl substances (PFAS), also known as “forever chemicals,” in drinking water. These compounds, found in products such as firefighting foam and non-stick pans, are notorious for lingering in the environment and in human bodies, thus earning the “forever” name. On April 10, 2024, the EPA set the new federal limit of PFAS at four parts per trillion. These new regulations are set to transform environmental policy, and introduce legal and financial challenges for companies and municipalities across the country.

Prior to these regulations, there were no enforceable drinking water standards for PFAS, leaving states to address contamination at their own discretion. The new stringent limits necessitate significant investment in water treatment technology. For legal practitioners, the introduction of the federal regulations is a major change in Environmental Law, thus opening the door to an influx of legal challenges. Companies responsible for PFAS pollution can face lawsuits from municipalities seeking reimbursement for water treatment expenses in addition to individuals affected by contaminated water pursuing health-related claims.

Forever chemicals continue to become a concern as they contaminate water and impact public health. As new regulations start to limit PFAS levels,  the legal question emerges: who pays? A central issue surrounding PFAS cases is determining liability. Water utilities, municipalities, and industries can face substantial cleanup costs under the new regulations, but who should ultimately bear this financial burden? Municipalities could argue that industries responsible for manufacturing or using PFAS should cover the costs. On the other hand, industries may counter this argument, saying that they followed the legal standards in place at the time of production or use. 

Several cases have already laid the groundwork for future PFAS lawsuits. A key precedent is attorney Rob Bilott's case against DuPont, which began in 1999 (Rich, 2016). Bilott represented a farmer whose cattle had died from PFAS-contaminated water. They eventually uncovered that DuPont had known about the dangers of PFAS for over half a century. There were several items seized from DuPont during the investigation including documents which consisted of “private internal correspondence, medical and health reports, and confidential studies conducted by DuPont scientists” (Rich, 2016).  These documents amounted to over 110,000 pages, some dating back as far as the 1950s. Despite receiving recommendations as early as 1951 about proper disposal methods from manufacturing company 3M, DuPont continued to pump ‘hundreds of thousands of pounds of PFOA powder through the outfall pipes’ into local water sources (Rich, 2016).  This ended in a historic $671 million settlement in 2017. 

Another instance of this occurring  involved the multidistrict litigation in South Carolina, where thousands of lawsuits regarding PFAS contamination caused by Aqueous Film Forming Foam (AFFF) have been grouped together for coordinated pretrial proceedings. These lawsuits focused on holding manufacturers, including 3M, accountable for contaminating water supplies with PFAS from firefighting foam used at military bases and airports. On April 1, 2024, a federal district court judge granted the final approval for a multibillion-dollar settlement, where 3M agreed to pay up to $12.5 billion to resolve claims brought by U.S. water providers (Aqueous Film-Forming Foams (AFFF) MDL, 2024).

Accompanying cost recovery, toxic tort claims are expected to surge as new federal regulations are enforced. Individuals affected by PFAS contamination are pursuing lawsuits for health issues like cancer and developmental disorders. In such lawsuits, plaintiffs must be able demonstrate a clear connection between their health problems and PFAS exposure.

With the new federal standards for PFAS in drinking water, there may also be a surge in efforts from municipalities seeking to recover costs for water treatment, along with individuals filing health-related claims. Such actions will force corporations and utilities to address the consequences of their environmental impact in court. The corporations will focus on accountability and ensuring that those affected by PFAS contamination receive proper remediation and justice.

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https://www.forbes.com/advisor/education/law/what-is-environmental-law/

Sources:

Aqueous Film-Forming Foams (AFFF) MDL. (2024). 3M PWS settlement. AFFF MDL. https://afff-mdl.com/3m-pws-settlement/ 

Rich, N. (2016). The lawyer who became DuPont's worst nightmare. The New York Times. https://www.nytimes.com/2016/01/10/magazine/the-lawyer-who-became-duponts-worst-nightmare.html