New Developments in PFAS Regulation Will Spur Massive Litigation

Most of you reading this are aware that PFAS belong to a family of compounds that are widely used in products, such as fire fighting foam, stain repellant coatings, and nonstick surfaces. Attorney Clay Hodges has written about PFAS in Aqueous Film-Forming Foam (AFFF) on this blog site. Please check out those previous blog posts if you are looking for more specific information regarding AFFF. There have been recent developments in the litigation surrounding PFAS, which this article will dive into, as well as provide background information about the chemicals themselves.

What are PFAS?

Per- and Polyfluoroalkyl Substances are a group of man-made chemicals that have been used in various industrial and consumer products since the 1940s. Known as ‘forever chemicals,’ they take an extended amount of time to break down in the environment, and in the human body. There are thousands of different PFAS: Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS) are two of the most widely used PFAS, and are the subject of recent EPA regulation, which will be discussed later in this article.

Exposure to PFAS

Surveys conducted by the Center for Disease Control (CDC) show that the majority of people in the United States have been exposed to some quantity of PFAS. These chemicals can be found in drinking water, food, and food packaging products. They can also be found in soil and water near waste sites, as well as manufacturing facilities. It is also present in fire extinguishing foam (AFFF) as mentioned above and in previous posts. In addition, these forever chemicals can be found in household products, personal care products and dust around the house. All of which is to say: there is a good chance PFAS is in your body as you read this. Mine too.

Certain individuals and activities create a heightened risk of exposure. Adults who work in industrial fields, and those who work directly with PFAS-containing materials are at a higher risk of exposure. Pregnant women drink an increased amount of water, and may be at risk if their water contains these harmful chemicals. Children are also at risk of heightened PFAS exposure as they drink more water, eat more food, and breathe more air per pound of body weight. Young children also crawl around on the floor, and put things in their mouths, which can lead to PFAS exposure in carpets, dust, and household products.

Health Effects of PFAS Exposure

Current studies have shown a range of health effects resulting from PFAS exposure. The most prominent is the increased risk of prostate, testicular, and kidney cancer. In women, reproductive effects have been reported such as decreased fertility, and high blood pressure in pregnant women. Children have been known to have low birthweight, bone variation, and accelerated puberty when exposed to PFAS. These chemicals also reduce the ability of the body’s immune system to fight infections, as well as hinder vaccine response.

Recent Regulatory Updates

On May 8, 2024, the Federal Register released an article with huge implications regarding the use of PFAS. Prior to the release of this report, on April 17, 2024, the Environmental Protection Agency (EPA) deemed two PFAS: PFOA and PFOS, as hazardous substances. This designation is pursuant to Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In addition, the EPA has established the default reportable quantity (RQ) of one pound for the release of PFOA and PFOS, pursuant to CERCLA 102(b), meaning that the release of one pound into the environment has been determined to cause human injury. Any lower RQ would result in a total ban of the chemicals.

What This Means for PFAS Litigation

These new regulations will go into effect in July 2024, and will likely cause PFAS litigation to expand. CERCLA designation section 111(g) requires operators of any facility manufacturing or using PFAS to provide notice of the release of hazardous chemicals to potential injured parties via publication in local news sources. This means that the release of one pound of PFOA or PFOS requires a public announcement to any area who may be impacted by the release. For comparison, in 2022, over one million pounds of PFAS were released into the environment, with individual facilities releasing over 50,000 pounds. These numbers are astronomically higher than the new RQ of one pound. With the new EPA regulations, alongside the CERCLA designation, it will be much more difficult for facilities to meet the requirements for release of PFAS, and will create room for new litigation. Look for cities and states to bring litigation against manufacturers who violate these new regulatory requirements. Further, The New York Times recently reported that companies using or manufacturing PFAS should expect massive litigation in the years ahead.

If you, or a loved one, have experienced adverse health effects that you believe may have been caused from exposure to PFAS, please first contact your medical provider. If these reactions have been severe, it may be worth the effort to evaluate your legal options. Please do not hesitate to reach out to attorney Clay Hodges with any questions at 919.334.6277.

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