In recent blogs, we have discussed the proliferation of environmental regulations.  The explosion of regulations is compounded by the almost unfathomable liability associated with per- and polyfluoroalkyl substances (PFAS) are a tremendous hurdle that, unfortunately, many companies may be unable to navigate.

Speaking about PFAS liability, Ralph DeMeo, a shareholder with Guilday Law PA was quoted in Bloomberg Law saying, “There’s not enough gold in Fort Knox to pay the damages and the settlements that are gonna come out of this. There’s just literally not enough money…there is a lot of concern about bankruptcy.”

To his point, Kidde-Fenwal Inc., which manufactured aqueous film-forming foam (AFFF), filed for bankruptcy last year due to potential liabilities associated with PFAS.

Some Notable PFAS Cases

For perspective, below are some of the PFAS lawsuits and settlements:

  • 3M expects to pay about $10.3 billion over 13 years to more than 11,000 public water systems.
  • In 2020, a $69.5 million settlement was finalized between the State of Michigan, Plainfield and Algoma townships, and Wolverine Worldwide.
  • BASF Corporation will pay $316.5 million to resolve the claims.
  • Ornua Foods North America Inc. faces a new lawsuit over its Kerrygold Butter products due to alleged misrepresentations about the packaging’s safety. The plaintiff in this PFAS lawsuit argues that chemicals migrate from the packaging into the butter.
  • Three Connecticut residents have filed a proposed class action against Kimberly-Clark Corp., alleging that the company contaminated private wells near its New Milford manufacturing plant.
  • Solvay will pay $75 million to NJDEP for Natural Resource Damages (NRDs) and $100 million to fund NJDEP PFAS remediation projects. This is separate from remediation efforts.
  • Bathhouse Farms is being sued because they marketed their smoothies as “healthy and natural” but contain PFAS.

These lawsuits developed before specific PFAS were classified as hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA).  This CERCLA listing will bring a new wave of legal action and add complications and new contract language in environmental due diligence.

AFFF is PFAS Source

AFFF used in firefighting is one of the many sources of PFAS (Image by Dieter zabel from Pixabay).

Also, see “Trillions in PFAS Liabilities Threaten Corporate Bankruptcy Wave.”

Plastics Makers Beware of PFAS Liability

Lawyer Brian Gross speaking to plastic-industry executives said the coming PFAS litigation could dwarf anything asbestos-related.  He also said, “Do what you can, while you can, before you get sued.  Review any marketing materials or other communications that you’ve had with your customers, with your suppliers, see whether there’s anything in those documents that’s problematic to your defense.  Weed out people and find the right witness to represent your company” (New York Times, “Lawyers to Plastic Makers: Prepare to ‘Astronomical’ Lawsuits”).

The US Chamber of Commerce, et al. have petitioned the United States Court of Appeals for the District of Columbia Circuit for the review of the EPA’s final rule entitled “Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid  (PFOS) as CERCLA Hazardous Substances.”

PFOA and PFOS Concentrations Fall

It is worth noting that as PFAS liability continues to grow, the levels of PFOA and PFOS detected in US citizens have dropped dramatically.  As reported by the Agency for Toxic Substances and Disease Registry, PFOA and PFOS in the blood samples of the US population are down 70% and 85% respectively from (1999 levels).

For more information about PFAS, see our PFAS Resources Page.

If you need assistance with an environmental issue, including litigation support, contact Jeffrey Bolin, M.S., CHMM, at 248-932-0228, Ext. 125.

Dragun Corporation does not use artificial intelligence in drafting our blogs or any other material.

Alan Hahn drafted this blog.  Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management.  He has worked in environmental management for 45 years.  He has written hundreds of blogs and articles.  His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.

Jeffrey Bolin, M.S., reviewed the blog.  Jeff is a partner and senior scientist at Dragun Corporation.  He is a published author, frequent speaker, and expert witness.  His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas.  See Jeff’s Bio.  

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