The National Rural Water Association (NRWA) of the United States has filed a PFAS class action lawsuit in the US District Court for the District of Columbia against the makers of firefighting foam products, accusing them of contaminating groundwater with carcinogens. PFAS (per- and polyfluoroalkyl chemicals,) are a class of heat and water-resistant chemicals that are used in a wide variety of applications including flame-retardants, and non-stick and industrial products, and are contained in many consumer goods such as raincoats, cookware and packaging. The "forever chemicals" are known carcinogens that do not degrade in the environment or in the human body.
Plaintiffs in the PFAS class action lawsuit claim that chemical company 3M negligently manufactured aqueous film forming foam (AFFF) products containing PFAS chemicals despite knowing about the contamination and health risks.
“Defendants were aware that PFAS chemicals are toxic to animals and humans, do not biodegrade, are persistent in the environment, move easily through soil and groundwater, and pose a significant risk to the environment and human health,” the 5 March PFAS class action lawsuit claims.
“Nevertheless, they elected to manufacture, market, and sell these chemicals, placing profits over human health and the environment.”
Last week an Ohio jury has ruled that chemical company DuPont Co. must pay $50 million to a survivor of testicular cancer and his wife. The plaintiff alleged that he had developed testicular cancer after drinking PFAS-contaminated water.
DuPont responded that “The verdict was a product of district court rulings that severely and improperly limited our defenses in this case”, and that the company will challenge the verdict on appeal.
The US Environmental Protection Agency (USEPA) is pursuing “multiple criminal investigations concerning PFAS-related pollution”, according to the February 2020 PFAS Action Plan Program Update.
This further complicates the already complex legal situation for the manufacturers of the widely used per-and polyfluoroalkyl (PFAS) chemical substances that have contaminated waterways and leached into soil throughout the world. Many types of PFAS are linked to a number of health problems: high cholesterol, increased liver enzymes, decreased vaccination response, birth defects, pregnancy-induced hypertension and testicular and kidney cancer, according to a 2016 EPA study.
Further, the National Institutes of Health concluded in a 2019 analysis that PFAS are in the blood of 97 percent of Americans.
In the United States, the Environmental Working Group (EWG) and its partners have identified at least 610 locations in 43 states that are known to be contaminated by PFAS, including drinking water systems serving an estimated 19 million people.
Who and what is being investigated by USEPA has not been disclosed.
Commenting in Bloomberg Environment on the action purportedly being taken, Brent Fewell, a former EPA official said: “Multiple investigations clearly signals EPA is serious about understanding what the manufacturers knew about the chemicals’ toxicity and when they knew it.
“It’s not at all surprising,” he added, “that EPA has signaled a criminal investigation or even multiple investigations into PFAS given the heightened health concerns and public attention".
However, while USEPA may initiate a couple of hundred criminal investigations per annum, only a small handful are ultimately prosecuted. Under the current administration in the White House, it is debatable if the EPA’s statement will actually mean anything.
“For decades, …. corporations have knowingly and maliciously contaminated our drinking water, food supplies and the blood of virtually every person in the U.S. with these toxic chemicals, and EPA knew it and did nothing,” said EWG President Ken Cook. “Holding polluters criminally accountable is hardly the calling card of the Trump administration.”
3M and DuPont originally developed and produced PFAS. The chemicals have been used by hundreds of companies in thousands of products, ranging from semiconductors to sticky notes to packaging to fire-fighting foam to frying pans since the 1940s.
Investigations and lawsuits against the manufacturers are already extant. 3M disclosed in a 28 January financial filing with the Securities and Exchange Commission (SEC) that it had received a grand jury subpoena from the U.S. Attorney’s Office for the Northern District of Alabama seeking documents related to 3M’s potential discharges from a manufacturing site in Decatur AL.
The Chemours Co (a Dupont spinoff) reported in a similar filing 14 February that it had received notice that the Justice Department is “considering whether to open a criminal investigation” under the Federal Food, Drug, and Cosmetic Act focused on PFAS in food packaging.
In the meantime, NBC News has investigated the financial capacity of some of the chemical companies to absorb damages associated with various legal actions, regardless of who initiates it.
“In 2015, as problems associated with PFAS were becoming clearer, DuPont began a series of complex transactions that transformed the company's structure.” At the end of the process, a “new” and, theoretically, "clean" DuPont had effectively transferred environmental liabilities to at least two new companies, thereby insulating the “new” operations by at least two corporate layers, NBC reported.
One of the spin-offs, Chemours, holds primary responsibility for the estimated tens of billions of dollars in PFAS obligations. According to the investigation, the company does not have the money nor the assets to cover them. Insolvency at Chemours would devolve claims to one of the other spin-offs, Corteva, who also does not have the financial capacity to absorb such losses.
The transfer is legal from a process standpoint but worrying. "You're seeing it again and again," said Clark Williams-Derry, an analyst with the Institute for Energy Economics and Financial Analysis told NBC News. "Spinning off your legacy liabilities into a separate corporation and to some other responsible party appears to be part of the standard playbook in these [energy and chemical] industries."
The DuPont transfer of assets is currently the subject of legal actions claiming the transfer was “fraudulent”.
Chemours' 2015 SEC filings estimated its environmental remedial cleanup obligations, excluding human health problems, at $295 Million USD. Nevertheless, citing "considerable uncertainty" regarding those costs, Chemours filings said that "adverse changes in circumstances" could bring the total to just over $1 Billion USD.
NBC News contends that the estimate is low. “Two PFAS cases settled in 2017 and 2019 paid out roughly that amount.”
Like DuPont, 3M, headquartered in Minneapolis, stopped making PFAS over 10 years ago. However, the company is also fighting multiple lawsuits in a number of jurisdictions but claims it is cooperating with government investigators.
The story of historical and continuing legal actions and the effect on the plaintiffs and those who defend them is told in the legal thriller 2019 film “Dark Waters”, currently showing in cinemas worldwide. The movie dramatises the legal case taken by lawyer Robert Bilott against DuPont after they contaminated the drinking water of Parkersburg West Virginia with PFAS chemicals.
DuPont reneged on a settlement agreement and Bilott decided to bring more than 65,000 individual cases against DuPont who ultimately settle the claims for $671 Million USD.