Efforts in the remediation and regulation of Per-and polyfluoroalkyl (PFAS) continue as litigation for PFAS-related liability claims is set to begin. The court forsees extensive challenges in tackling the many claims associated with personal injury and environmental damages from contamination.
Where are we now in PFAS litigation?
On June 22, 2023, ahead of 3M's trial for their PFAS Liability claim set forth by the City of Stuart, Florida, 3M announced they would settle public water system claims for a sum between $10.5B and $12.5B, subject to Court approval. The settlement is set to start paying claims in 2024 through 2036. This settlement is in addition to a $1.19B settlement reached by DuPont and others for the same PWS claims.
To be considered, state Claimants must have a positive test results for PFAS in their drinking water system. For Public Water System Claimants such as the city of Stuart, who have had their water utility provision wells contaminated by PFAS, immediate remedial measures must be taken by water utility customers upon discovery of water contamination. These measure include filtering PFAS from their drinking water system prior to delivery.
Due to costs and lack of an in-situ remedial technology for PFAS, Claimants are expected to incur filtration expenses to perpetuity or seek alternative potable water supplies. As of July 28, the Court overseeing thousands of claims under the federal court system's Multi District Litigation (MDL) in the District of South Carolina is still pending approval of the settlement; however, barring unforseen circumstances, Court approval is widely anticipated even with opposition from several State's Attorneys General. The Court granted an extension until August 7, 2023, to come to an agreement. Upon approval, approximately 400 plaintiffs would present their legal and technically defensible documents to receive funds to address their specific claims.
Considerations for Eligible Claimants
The Court has expressed intent to focus on the next case type once water provider cases are resolved. The next case type are personal injury claims and will investigate whether Aqueous Fire Fighting Foam (AFFF) containing PFAS was responsible for the plaintiffs' alleged personal injuries. On May 5, the Court ordered all parties to select cases involving an Air Force base and a Navy facility. The court will then slect from a group of plaintiffs agreed on by both parties or to be rescued by the court to be the first bellwether personal injury trial. The trial is expected to start in 2024.
The Court has set a series of guidelines that plaintiffs must fall under to be considered. Plaintiffs must exhibit adverse health effects including kidney cancer, testicular cancer, hyperthyroidism, or ulcerative colitis through consumption of PFAS from “drinking water.” The court will not recognize “direct exposure” to PFAS, such as dermal contact, inhalation, or occasional exposure as a consideration for trial. The Court set a deadline of July 28 for the parties to present a list of plaintiffs and will make a decision by August 11.
Following the personal injury trial, it is presumed focus will shift to what is widely believed to be the most difficult portion of the Court’s docket: claims for environmental damages. Environmental claims present complex regulatory and legal issues, involve many parties and technical experts, and can be broadly categorized as property damage and contamination/pollution.
Discussion of pollution claims is expected, in addition to multidistrict litigation (MDL) environmental damage claims. Such claims will reveal the efforts needed to restore an aquifer to safe consumption standards. Property damage claims will likely expose the diminished value of property affected by contamination. The latest news on this area is the Court indicating that the “true costs” of these claims are not known and it would be best for both defendants and plaintiffs to involve the U.S. Congress to resolve all the complex angles of testing, remediation, and treatment nationwide. Based on this, environmental damage claims will rightly be addressed last. Yet, preparation is key to ensure plaintiffs address potential liabilities under CERCLA law.
Preparing for Litigation and Legal Considerations
The Court will eventually provide direction on how to handle thousands of environmental damage claims. Many of these claims are difficult and will face challenges. Cameron-Cole's experts are advising several plaintiffs and their legal counsels on the PFAS MDL environmental damage claims and developing preliminary environmental restoration cost estimates.
While the Court has not indicated how and when it will manage environmental damage claims (I.e., settlement or trial), there are three key steps that plaintiffs can take to prepare for either outcome:
- Leverage professional expertise. A trusted environmental professional like Cameron-Cole can advise on general cost estimates for environmental remediation.
- Communicate effectively. Direct and thorough communication and transparency is key between the consultant, the plaintiff’s legal counsel, and the plaintiff to reach a productive outcome.
- Document and maintain organization. Document all soil, groundwater, surface water, and sediment environmental assessment actions. These records will help determine the lateral and vertical extent of contamination upon which remedial cost estimates will be based to present to the Court, as the Court will likely require these estimates as part of individual settlement claims, a class action settlement claim, or by trial.
Considerations for Non-Eligible Parties
While current litigation is underway, the landscape surrounding PFAS will continue to evolve as we learn more about these chemicals and regulations are updated accordingly. Since it’s unlikely that any entity in either the public or private sector will avoid being impacted, it’s important to take a proactive approach to understanding and managing their effects. Leveraging a third-party expert can help you:
- Evaluate preliminary risk
- Characterize PFAS risk
- Develop interim response actions
- Indentify funding support and sources
- Design and implement mitigation strategies
- Assess and mitigate operational impacts
Viewing your potential exposure through these six lenses will help prepare you for the next phase of regulation and learning about PFAS.
Re-Evaluating Your PFAS Status and Journey for the Future
Trusted environmental professionals understand the complexity of this ongoing pursuit, and remain focused on their key fundamental steps, exercising a sound approach and reasonable judgment with environmental statues and rules in mind.