On March 29, 2023, Maine Attorney General (AG) Aaron Frey announced he filed two lawsuits against manufacturers of per- and polyfluoroalkyl substances (PFAS) and PFAS-containing products.

“The lawsuits allege that the manufacturers, DuPont and 3M, among others, have known for decades that PFAS pose serious risks to human health and the environment, but instead promoted their PFAS products as safe and appropriate for widespread use in Maine,” the AG’s news release says. “The suits allege that the defendant manufacturers knew of the science of PFAS toxicity decades ago but concealed that information from the public and continued to manufacture, sell and profit from their products containing these chemicals.”

“The defendant manufacturers have willfully introduced toxic chemicals into Maine’s environment in pursuit of profit for shareholders,” Frey adds. “Maine citizens and the State are left to manage the harm these chemicals cause in our natural resources, our animals, our food, and our bodies, and the State is working overtime to manage the fallout. PFAS manufacturers must account for the environmental, health and economic damage caused by their actions.”

The suits were filed in the Cumberland County Superior Court and seek to recover all costs to investigate, clean up, restore, treat, monitor, and otherwise respond to the contamination of Maine’s natural resources. The state has also asked the Court to void certain corporate transactions between DuPont and its affiliates designed to insulate DuPont from PFAS-related liabilities.

“PFAS contamination threatens the health of our people, our wildlife, our environment, and our future. My Administration, working closely with the Legislature, has spearheaded one of the strongest efforts in the nation to address PFAS, but more work remains – particularly holding accountable the large manufacturers responsible for this serious problem,” said Maine Governor Janet Mills in the AG’s news release. “Evidence indicates that, for many years, DuPont, 3M and the other defendant manufacturers knew that PFAS posed serious risks to human health and the environment but hid that knowledge from the public while they lined their pockets at our expense. We will defend the people of Maine in the face of this recklessness. I applaud Frey for pursuing this litigation, and my Administration will continue to work closely with him to protect the health of our state and our citizens.”

PFAS are also known as “forever chemicals” because they’re resistant to breaking down over time in the environment. These highly toxic chemicals have been shown to accumulate in people and other living organisms, and they’ve been linked to a wide array of harmful health effects, including cancer, thyroid disruption, ulcerative colitis, liver and kidney disease, and developmental and systemic disorders.

PFAS are also found in many products, including firefighting foam, packaging, cookware, carpeting, clothing, cosmetics, and electronics.

Other state actions against PFAS

There have been 15 suits by state AGs against companies alleged to be responsible for PFAS contamination, according to Pew Charitable Trusts in a September 22, 2023, article.

“While states await regulations from the [EPA], rising awareness in recent years has prompted more than two dozen states to take the initiative to protect their residents’ health, in many cases through bipartisan legislation,” the Pew article adds. “Some have banned the use of PFAS in certain consumer products. Others have issued stronger water quality standards or empowered state agencies to speed up regulations. Many are pursuing cleanup and remediation efforts, with states suing polluters for compensation ranging from tens of millions to nearly a billion dollars. And as more agencies and lawmakers become interested and begin testing for PFAS, experts say, more changes will come.”

“The interest and action [are] increasing,” said Sarah Doll, national director of Safer States, an alliance of environmental health groups focused on toxic chemicals, according to Pew. “More governmental bodies are looking and finding PFAS in water, sludge and the air. It's burgeoning, and I absolutely anticipate it's going to be all over 2023 policy sessions.”

Safer States has tracked 203 bills proposed in 31 states related to PFAS issues, Pew notes.

Determining responsibility

There has been a surge of PFAS-related litigation with a growing scope of complaints, including individual consumers seeking health-related damages, owners of locations where PFAS are manufactured, owners of places that have used materials containing PFAS, those seeking damages for water contamination, consumer protection cases over failures to properly warn of PFAS on labels, and municipal and state lawsuits seeking damages to cover cleanup and remediation costs.

“It costs tens of millions of dollars to remediate PFAS from water and sewer facilities,” said Jon Groveman, policy and water program director at research and advocacy group Vermont Natural Resources Council, according to Pew. “It's either going to come from taxpayers or the citizens who pay water and sewer bills. AGs are saying, ‘No, that's not fair.’”

“In sum, PFAS litigation is rapidly expanding beyond the initial concerns for PFAS manufacturers locally in and around production facilities,” Reuters says. “Now, new research on the scope of PFAS use and environmental and health impacts is causing litigation concerns for many consumer products companies with PFAS-containing products through their distribution channels worldwide.”

Many in industry have taken the position that manufacturers aren’t responsible for every incident resulting in contamination.

“It's not the person who manufactured it who caused the spill or leak, it's the person on whose property the leak occurred,” said Scott Manley, executive vice president of Wisconsin Manufacturers & Commerce, a pro-business lobbying association, according to Pew.

Many industry groups are supportive of creating funding programs to pay for cleanup efforts.

Takeaways

Industry is advised to develop proactive strategies to determine their liability related to dealing with PFAS or products containing PFAS, as well as to take steps to minimize their proximity to the manufacture and distribution of the chemicals or products that contain PFAS.

“Insurance may be available for claims by states alleging groundwater contamination from PFAS, for claims by individuals alleging bodily injury from exposure to PFAS-containing products and for PFAS-related claims asserted against directors and officers,” advises law firm Pillsbury Winthrop Shaw Pittman LLP. “The insurance industry is likely to increase the breadth of PFAS-related exclusions in newly issued policies, though some companies may be able to avoid these exclusions with their brokers in connection with the underwriting of new insurance policies. Now is also the time to consider whether your company has pre-1987 occurrence-based policies, as these policies often contain broad wording, few exclusions and may cover modern-day claims if the ‘occurrence’ or ‘property damage’ or ‘bodily injury’ is alleged to have commenced even decades ago.”

The rising amount of litigation has caused the current administration to make PFAS regulation a priority. Industry can therefore continue to expect additional compliance and enforcement actions related to the manufacture and use of PFAS and products containing PFAS.

“While the ultimate scope of PFAS litigation and liability is yet to be determined (some observing PFAS litigation and liability risk call it ‘the next asbestos’), growth of PFAS-related litigation is essentially guaranteed, especially as thousands of PFAS are currently known to exist, with many new chemicals being developed today to replace legacy PFAS with demonstrated adverse health effects,” adds Reuters.