Several California public drinking water systems, led by the Orange County Water District, filed suit in Los Angeles federal court on April 12, 2024, against seven per- and polyfluoroalkyl substances (PFAS) manufacturers. This lawsuit marks the first legal action to cite the EPA’s new enforceable drinking water standards for PFAS.
“The lawsuit accuses the manufacturers of negligence and of creating a nuisance by contaminating water with PFAS and seeks money to remediate that contamination,” according to Reuters.
PFAS are a group of manufactured chemicals that include chemicals known as perfluorooctanesulfonic acid (PFOS), perfluorooctanoic acid (PFOA), and GenX. There are nearly 5,000 different types of PFAS, some of which have been more widely used and studied than others, according to the U.S. Food and Drug Administration (FDA). PFAS are often referred to as “forever chemicals” because of their persistent nature in both the human body and the environment. They also build up in our bodies over time and have been linked to deadly cancers, impacts to the liver and heart, and immune and developmental damage to infants and children.
“The lawsuit … targets companies like Dynax America Corp. and Arkema Inc. for negligence and creating a nuisance through PFAS contamination of water,” reports Smart Water Magazine. “Their persistence in the environment and the human body poses serious health risks, prompting the Biden administration to implement regulations limiting PFAS levels in drinking water. Although the recent regulations directly apply to drinking water systems rather than manufacturers, legal experts suggest that they provide a clear benchmark for acceptable PFAS levels in drinking water. This clarity can support the position of water systems seeking money to remediate contamination in court, as they can more easily prove they have been harmed by PFAS pollution.”
According to EPA estimates, between 6% and 10% of the 66,000 public drinking water systems subject to EPA water regulations may have to take action to reduce PFAS to meet these new standards. All public water systems have 3 years to complete their initial monitoring for these chemicals, and they must inform the public of the level of PFAS measured in their drinking water. Where PFAS is found at levels that exceed these standards, systems must implement solutions to reduce PFAS in their drinking water within 5 years.
This case, Orange County Water District et al. v. AGC Chemicals Americas Inc. et al(Case # 8:24-cv-00820), filed in the U.S. District Court for the Central District of California, “is likely to be transferred to a federal court in South Carolina where hundreds of similar cases have been centralized,” Reuters adds. “A trial against many of the defendants named in Orange County's lawsuit by water systems across the U.S. is expected in September.”
And, Reuters continues, the South Carolina litigation has already resulted in settlements valued at “over $11 billion between water systems and chemical companies like 3M, DuPont de Nemours Inc., Chemours, Corteva and Johnson Controls subsidiary Tyco Fire Products.”
The ongoing legal action and the many lawsuits emphasize the importance of holding responsible parties accountable for the expensive costs of removing forever chemicals from drinking water and the environment.
Many public water systems have expressed concerns that local taxpayers will end up paying for the cost of treating drinking water for PFAS contamination considering the EPA’s new drinking water standards.
“Since PFAS contamination is mainly the result of manufacturers' negligent conduct and misrepresentation of their products' safety, the National Rural Water Association (NRWA) filed a class action lawsuit in 2020 on behalf of public water utilities across the U.S. to keep the liable polluters accountable,” according to an Environmental Litigation Group P.C. blog post. “In June 2023, the NRWA secured two historic settlements against Corteva, DuPont, and Chemours ($1.185 billion) and the 3M chemical corporation ($12.5 billion payable over 13 years), with the funds meant to assist vulnerable rural communities and drinking water providers cover the exorbitant costs of PFAS cleanup.”
Because the 3M litigation is ongoing, other public water systems can still join in the lawsuit.
The current administration has allocated a total of $21 billion in funding from the Bipartisan Infrastructure Law to address the detection and treatment of PFAS in public drinking water systems.
The most recent lawsuit, filed by Orange County, isn’t the first time this drinking water system has filed suit over PFAS.
“On December 1, 2020, eleven local water districts, including the Orange County Water District, filed a lawsuit in Orange County Court alleging that PFAS manufacturers (DuPont, 3M, Chemours and Corteva) and one consumer product manufacturer (Decra Roofing Systems) are responsible for the costs of cleanup and decontamination related to PFAS in the districts’ water,” The National Law Review says.
The bottom line is that PFAS litigation is heating up. Companies like Decra are end users that have used products containing PFAS in their manufacturing processes.
Because PFAS are present in thousands of consumer products, it’s realistic to expect to see more manufacturing companies named in PFAS litigation.
Industry is advised to be prepared for potential PFAS litigation.
“While there is ample time to adjust R&D, purchasing, manufacturing, and distribution, it will be important for companies not to fall victim to believing that they will never become embroiled in a PFAS lawsuit,” The National Law Review advises. “More regulations are likely in the future, data is being collected constantly on potential sources of PFAS pollution, and staying informed and ensuring that strong compliance programs are in place are essential to business continuity.”