Private Party Actions are Establishing PFOS & PFOA Liability

by Ilene Munk & Kacy Manahan

 

Perfluorooctane Sulfonate (PFOS) and Perfluorooctanoic Acid (PFOA) are the most abundant perfluoronated chemicals (PFCs) in the United States. Together PFOS and PFOA are sometimes referred to as PFCs, or C8 compounds. These substances are not naturally occurring. Humans and our manufacturing processes create them. They are as widespread as polychlorinated biphenyls (PCBs), and, some experts believe, an equally as serious environmental issue.

From the 1960s until 2002, PFOS was primarily used in firefighting foam. Since the 1940s, PFOA was used in the manufacture of fluoropolymers, which are substances that repel water and have “non-stick” properties. Common uses of PFOA included waterproofing textiles, non-stick cookware, firefighting foam, metal plating, photography, photolithography, semi-conductors, paper, packaging, coating additives, cleaning products, pesticides, and to provide friction reduction in the aerospace, automotive, construction, and electronics industries.

Despite these beneficial uses, PFOS and PFOA are persistent, toxic, and bio-accumulative. They appear in soil, air, and groundwater at many locations in the United States, particularly areas around chemical plants and military bases.

The Environmental Protection Agency (EPA) has determined, based on its Guidelines for Carcinogen Risk Assessment, that there is “Suggestive Evidence of Carcinogenic Potential” of PFOA and PFOS in humans. EPA Office of Water, Health & Ecological Criteria Div., EPA 822-R-16-005, Drinking Water Health Advisory for Perfluorooctanoic Acid 47 (2016). EPA also points to potential effects such as low birth weight, accelerated puberty, and skeletal variations in children as a result of exposure during pregnancy or breastfeeding. See Lifetime Health Advisories and Health Effects Support Documents for Perfluorooctanoic Acid and Perfluorooctane Sulfonate, 81 Fed. Reg. 33,250, 33,250.May 25, 2016). Exposure to PFOA and PFOS may also cause testicular or kidney cancer, tissue damage to the liver, immune system effects and cholesterol changes.

Federal Regulation of PFOA and PFOS

In the late 1990s, EPA became aware of the persistence, bioaccumulation, and toxicity of PFOA and PFOS. Based on health and environmental concerns, EPA and 3M, the manufacturer of PFOS, agreed to a voluntary phase-out of the chemical in the early 2000s. Shortly thereafter, to fill gaps in its knowledge, EPA entered into enforceable consent agreements, memoranda of understanding, and voluntary commitments, with parties who had information about the chemicals (such as 3M and DuPont). In 2006, EPA invited several entities to engage in a global stewardship program with the goals of achieving a 95% reduction in PFOA by 2010 and total elimination of PFOA from emissions and products by 2015. All participants met the program goals by 2015.

EPA has also promulgated several Significant New Use Rules (SNURs) under the Toxic Substances Control Act (TSCA) § 5(a)(2) relating to these chemicals. SNURs allow EPA to determine that a use of a chemical substance is a significant new use, thereby prohibiting the manufacture or processing of such substance without prior notice to the EPA.

In addition to its TSCA authority, EPA may regulate PFOA and PFOS pursuant to the Safe Drinking Water Act (SDWA).  EPA listed PFOA and PFOS on the Contaminant Candidate List (CCL) 3 in 2009 and CCL 4 in 2016. The CCL prioritizes unregulated contaminants for regulatory decision-making under SDWA.

Although PFOA and PFOS have not yet been subject to a regulatory determination, they have been subject to unregulated contaminant monitoring pursuant to SWDA § 1445(a)(2), and have been short-listed for a regulatory determination. Additionally, in 2014, pursuant to SDWA § 1412(b)(1)(F), EPA established non-regulatory, Lifetime Health Advisory levels in 2016 for both PFOA and PFOS. Lifetime Health Advisories and Health Effects Support Documents for Perfluorooctanoic Acid and Perfulorooctane Sulfonate, 81 Fed. Reg. 33,250, 33,251 (May 25, 2016). EPA recommends that if water sampling results indicate that the chemicals are present at or above 0.07 ppb, the applicable drinking water safety agency and consumers should be notified. As of this writing, most public water systems do not monitor for PFOA/PFOS and are not generally required to do so.

Additionally, EPA has authority under the Clean Air Act (CAA) to regulate PFOA and PFOS.  In 2012, EPA finalized a rule applicable to several source categories under CAA § 112(d)(6), the National Emission Standards for Hazardous Air Pollutants (NESHAP) program. National Emission Standards for Hazardous Air Pollutant Emissions: Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks; and Steel Pickling–HCl Process Facilities and Hydrochloric Acid Regeneration Plants, 77 Fed. Reg. 58,220, 58,223 (Sept. 19, 2012).

Several states have taken the lead in monitoring and regulating PFOA and PFOS levels in the environment. The Maine Center for Disease Control and Prevention has set maximum exposure guidelines for drinking water that correspond to EPA’s lifetime health advisory. Minnesota’s health risk limit, set in 2008, remains at 0.3 ppb for both PFOA and PFOS and is currently under review based on EPA’s health advisory. New Jersey’s preliminary health-based guidance for PFOA is currently set at 0.04 ppb.

Private Party Actions Regarding PFOA and PFOS Contamination

Private party actions are developing more rapidly than regulatory action. A cluster of private actions against the DuPont chemical company illustrate this trend. DuPont’s Washington Works plant in West Virginia on the Ohio River began use of PFOA at this facility in the 1950s, and became aware of possible negative health effects in 1981. In violation of TSCA § 8(e) and a corrective action permit issued by EPA under the Resource Conservation and Recovery Act (RCRA), DuPont failed to report that some of its exposed female employees had passed PFOA to the bloodstream of their unborn children. EPA did not learn about this finding until approximately 20 years later.

In 2002, EPA issued an emergency administrative order under the SDWA to provide drinking water treatment for public and private water users near the Washington Works facility based on a PFOA screening level of 150 ppb. Four years later, EPA issued a second administrative order to reduce the screening level to 0.5 ppb. EPA reduced this level yet again in 2009 to 0.4 ppb. EPA amended the 2009 order on January 5, 2017 adding DuPont’s newly-formed Chemours Company (a spin-off of Dupont’s Performance Chemicals segment) as a party subject to the order, requiring additional actions corresponding with the lifetime health advisory level of 0.07 ppb for PFOA, and expanding the geographic area to which the administrative order applies.

EPA additionally filed administrative complaints against DuPont under TSCA and RCRA in 2004. In 2005, EPA and DuPont reached a settlement regarding these violations in which DuPont agreed to pay $10.25 million in civil penalties and conduct supplemental environmental projects worth $6.25 million.

Throughout this process, DuPont has been subject to several private party actions. In 2001, residents of Ohio and West Virginia living near the Washington Works facility filed a class action suit against DuPont in a state court in West Virginia. The case, Leach v. E.I. Du Pont de Nemours & Co., No. 01-C-698 (Wood County W. Va. Cir. Ct.), involved common law tort claims. Three years after class certification, the case was settled in February 2005. Under the settlement, DuPont agreed to pay up to $235 million for health monitoring of class members and $70 million for health and education programs. DuPont also agreed to convene a scientific panel to analyze the effects of PFOA exposure. The panel found a probable link between the chemical and six illnesses: kidney cancer, testicular cancer, ulcerative colitis, high cholesterol, thyroid disease, pregnancy-induced hypertension, and preeclampsia. This panel studied 69,000 members of the Leach class to make the “probable link” determination. Pursuant to the settlement, individual class members who suffered from one of the six identified diseases were permitted to pursue personal injury and wrongful death claims against DuPont, who, in turn, would not contest general causation. However, DuPont remained free to contest specific causation and assert any defense not barred by the agreement.

Plaintiffs from the original Leach class action subsequently filed individual claims along with other exposed individuals. In 2013, the cases were consolidated in the Federal District Court in the Southern District of Ohio. DuPont faced over 3,500 individual claims in multidistrict litigation (MDL) over health issues relating to exposure to PFOA from the Washington Works plant. Erica Teichert, US Jury Orders DuPont to Pay $10.5 Million over Leaked Chemical, 34 No. 24 Westlaw Journal Toxic Torts 13, Jan. 13, 2017. Although the majority of claims involved injuries such as high cholesterol or thyroid disease, several alleged that exposure to DuPont’s PFOA caused cancer.

In two test cases used to identify major issues in the MDL and to gauge future liability, DuPont faced significant losses. In October 2015, a jury awarded $1.6 million to a woman who suffered kidney cancer allegedly caused by DuPont’s contamination. Bartlett v. DuPont Co., No. 13-cv-170, verdict returned (S.D. Ohio Oct. 7, 2015). In July 2016, a plaintiff with testicular cancer was awarded $5.1 million in compensatory damages and $500,000 in punitive damages. Freeman v. E.I. du Pont de Nemours and Co., No. 13-cv-1103, verdict returned (S.D. Ohio July 8, 2016) These trials were “bellwether” cases, non-binding on subsequent litigation. However, they served to help DuPont and claimants evaluate settlement options. In the first of 40 trials scheduled in the Southern District of Ohio for 2017, a jury awarded a man with testicular cancer $2 million in compensatory damages and $10.5 million in punitive damages. In re DuPont C-8 Personal Injury Litigation, No. 13-md-2433, verdict returned (S.D. Ohio Jan. 5, 2017)

During litigation, DuPont and one of its spin-off companies, the Chemours Company, disputed which company would be ultimately liable for damages.  In February 2017, however, DuPont and Chemours settled the MDL for $671 million, each entity agreeing to pay $335.35 million. Chemours has also agreed to pay up to $25 million annually for the next five years toward costs not covered by the MDL settlement. DuPont will pay an additional $25 million, if necessary. Neither company admitted fault, but the MDL settlement also resolved the dispute regarding liability between the companies.

In another separate action against DuPont, the Little Hocking Water Association filed suit in 2009 after discovering contamination in its aquifer. Little Hocking, a nonprofit supplying water to two counties in Ohio, drew water from aquifers contaminated by DuPont’s Washington Works plant.  Little Hocking’s claims included imminent and substantial endangerment under RCRA, public and private nuisance, negligence, trespass, abnormally dangerous or ultra-hazardous activity, conversion, unjust enrichment, and declaratory judgment for indemnity. Little Hocking v. E.I. Du Pont Nemours & Co., 91 F. Supp. 3d 940, 947 (S.D. Ohio 2015). On cross-motions for summary judgment, DuPont did not contest the release of PFOA into the environment. This article will discuss the RCRA citizen suit claim exclusively.

To prevail on a citizen suit under RCRA § 6972(a)(1)(B), Little Hocking needed to show that (1) DuPont is a person, who (2) contributed to or is currently contributing to disposal of solid waste (3) that may present an imminent and substantial endangerment to health or the environment. DuPont contested elements two and three of Little Hocking’s claim. Prior to any substantive argument about Little Hocking’s establishment of a RCRA citizen suit claim, however, DuPont argued that Little Hocking did not have standing due to lack of injury. DuPont also argued that the Southern District of Ohio did not have subject matter jurisdiction over any claim seeking remediation due to federal preemption.

With respect to standing, Little Hocking’s alleged injury under RCRA was harm to the environment on its property. As a remedy, the water company sought injunctive relief under RCRA § 6972(a)(1)(B) requiring DuPont to clean up its wellfield and investigate additional contamination pathways. DuPont argued that Little Hocking did not have standing due to lack of injury – the PFOA contamination was being removed from the water at DuPont’s expense, so there was no imminent and substantial endangerment present. The court found that a party can establish standing in a RCRA citizen suit by alleging presence of contamination on its property as an injury-in-fact that is traceable to the defendant and may cause imminent and substantial harm to human health or the environment. Little Hocking, 91 F. Supp. 3d at 954. The court emphasized the Supreme Court’s admonition that “the relevant showing for purposes of Article III standing… is not injury to the environment but injury to the plaintiff.” Id. (quoting Friends of the Earth, Inc. v. Laidlaw Envt’l Services, 528 U.S. 167, 169 (2000)).

Additionally, DuPont argued that the court did not have subject matter jurisdiction over any remediation on Little Hocking’s well-field due to the ongoing remediation agreement with EPA. Case law cited by DuPont stood for the proposition that a consent decree in federal court prevents a plaintiff from pursuing state law claims for additional remediation due to federal preemption. However, DuPont had entered administrative consent orders, not judicially approved consent decrees and Little Hocking was seeking relief under federal law. Therefore, the court found it had jurisdiction over Little Hocking’s claim. Id. at 956–57.

In determining the merits of Little Hocking’s claim to relief under RCRA § 6972(a)(1)(B), the court focused on the injury to Little Hocking, as opposed to the community served by Little Hocking. Therefore, any disposal of PFOA on the well-field was relevant. Two major ongoing pathways existed from the DuPont Washington Works Plant to Little Hocking’s well-field:  an air deposition pathway and a water pathway via the Ohio River. DuPont argued that the water pathway was not a disposal of solid waste within the meaning of RCRA because the Washington Works Plant discharged to the Ohio River under a Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit.

Under RCRA § 6903(27), “solid waste” excludes “solid or dissolved materials in […] industrial discharges which are point sources subject to permits under…” the CWA’s NPDES program. EPA’s regulations also support exclusion of industrial point source discharges. The court found that this exclusion applied to DuPont’s point source discharge, regardless of the fact that the NPDES permit did not contemplate PFOA discharges. Ultimately, the court found it did not matter if an NPDES permit was in place – the relevant question was whether the discharge is subject to the CWA’s NPDES permit scheme.

Little Hocking then pointed to several other water pathways, including contaminated soils in landfills, digestion ponds, and soil on the Washington Works property itself. Little Hocking alleged that contamination from these sources reached its wellfield via seeps, groundwater, and storm water runoff. Again, DuPont claimed that these sources were covered by its NPDES permit. The court held that because it was not clear whether all storm water runoff from the contaminated Washington Works property was channeled to DuPont’s permitted outfalls, or if some reached the wellfield via an alternate pathway, there remained a genuine issue of material fact as to whether an alternate storm water pathway constituted disposal of solid waste under RCRA. The court also held that because RCRA’s NPDES exception does not cover “industrial wastewaters while they are being collected, stored, or treated before discharge, nor does it exclude sludges that are generated by industrial wastewater treatment,” there remained an issue of genuine material fact regarding these pathways to Little Hocking’s wellfield. 40 C.F.R. § 261.4(a)(2); Little Hocking, 91 F. Supp. 3d at 961. After a review of applicable case law, the court held that any PFOA that reached Little Hocking’s wellfield via seepage into the Ohio River is not covered by the solid waste exclusion, and that Little Hocking need not quantify the amount of seepage to establish disposal.

Regarding air emissions that contaminated Little Hocking’s wellfield via deposition, DuPont argued that such emissions did not fit within RCRA’s definition of solid waste, which covers “discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial […] operations.” 42 U.S.C. § 6903(27); Little Hocking, 91 F. Supp. 3d at 963. DuPont asserted that because the gaseous PFOA deposited on the wellfield was not “contained” pursuant to the RCRA definition, it was not a solid waste. Little Hocking urged the court to follow its own precedent in Citizens Against Pollution v. Ohio Power Co., No. C2–04–CV–371 holding that flue gas touching down on nearby land was “solid waste” within the meaning of RCRA. 2006 WL 6870564, at *3–5 (S.D. Ohio July 13, 2006). DuPont argued that the Ninth Circuit’s reasoning in Center for Community Action & Environmental Justice v. BNSF Railway Co., 764 F.3d 1019, 1026–29 (9th Cir. 2014) correctly ruled that RCRA governs only land disposal, and the CAA governs all air pollution. Siding with Little Hocking, the court declined to follow the Ninth Circuit and held that emissions of PFOA particulate matter deposited on the wellfield contaminating the groundwater constituted disposal of solid waste under RCRA.

DuPont also argued that the PFOA on Little Hocking’s wellfield did not present an imminent and substantial endangerment to health or the environment, a necessary showing to establish a RCRA citizen suit. Ongoing treatment of the water supply to remove PFOA abated any endangerment to human health, DuPont argued, and Little Hocking failed to show evidence of environmental endangerment. The court agreed with DuPont regarding the human health threat – such a threat would only exist if DuPont ceased operation of its filtration equipment, and Little Hocking had not shown that a cessation might occur. Because the only pathway from Little Hocking’s wellfield to human exposure was subject to treatment, no threat existed. DuPont claimed that no environmental endangerment existed at the wellfield, relying on the fact that there were no outward signs of environmental stress and that the mere presence of PFOA is not enough to establish imminent and substantial endangerment. The court found, however, that the imminent and substantial endangerment element may be established as to the environment by showing a reasonable science-based concern for harm to the environment. Because the court found that there was reasonable cause for concern that plants and animals in the wellfield may be exposed to PFOA, there was a genuine issue of material fact regarding the imminence and substantiality of the environmental endangerment.

In sum, the Southern District Court of Ohio found genuine issues of material fact concerning each element of a RCRA citizen suit. Therefore, DuPont’s motion for summary judgment was denied. In late 2015, DuPont and Little Hocking entered into a settlement agreement for an undisclosed amount.

In yet another action against DuPont, in December of 2016, the New Jersey town of Carneys Point sued the company for violation of New Jersey’s Industrial Site Recovery Act. The Industrial Site Recovery Act mandates that businesses remediate property upon transfer to another entity. N.J. Stat. Ann. § 13:1k–9b (West 2017). If cleanup prior to transfer isn’t feasible, the Act requires the business to provide funding for future remediation by state and local authorities. N.J. Stat. Ann. § 13:1k-9e (West 2017). DuPont allegedly triggered this Act when it transferred its Chambers Works facility to Chemours prior to merging with Dow Chemical Company. Carneys Point claims that cleanup at the Chambers Works facility would cost $1 billion.

Another example of private party action to establish PFOA and PFOS liability involves a lawsuit against the company 3M.  In an Alabama federal district court, 3M is facing a RCRA citizen suit brought by Tennessee Riverkeeper alleging that ongoing releases of PFOA and PFOS have infiltrated and contaminated surface water and groundwater. Allegedly, groundwater underneath 3M’s facility on the south bank of the Tennessee River contains up to 4,980 ppb of PFOA and 3,890 ppb of PFOS, with lower concentrations found near landfills where the chemicals were allegedly disposed. In February of 2017, 3M’s motion to dismiss Tennessee Riverkeeper’s RCRA claim was denied. Tenn. Riverkeeper, Inc. v. 3M Co., No. 5:16-CV-01029-AKK, 2017 WL 784991 at *9 (Feb. 10, 2017). The district court found that 3M’s ongoing remedial action agreement with EPA-approved Alabama Department of Environmental Management did not moot Riverkeeper’s claims.

A private party action alleging PFOS/PFOA contamination of a community drinking water source was filed by the Water Works and Sewer Board of the Town of Centre v. 3M et al, 13-CV-2017-900049, (Circuit Court of Cherokee County, Alabama (filed May 15, 2017)). The complaint alleges PFC contamination, including but not limited to PFOA and PFOS, resulting from the manufacture of carpets with waterproofing compounds which resist treatment by traditional wastewater treatment works and have allegedly contaminated the water supply upstream of the City of Centre, Alabama’s water intake location.

With areas of PFOA and PFOS contamination being discovered on a nearly monthly basis, it is important for practitioners to be aware of the issues and acquaint themselves with emerging case law.  It is also worth noting that the liability judgments in the DuPont Washington Works MDL, including punitive damage awards were based on a company’s failure to act after having information related to PFOA/PFOS contamination, and may be useful to consider when working with clients involved in this issue.

Non-Industrial Sources of PFOA and PFOS Contamination

Pennsylvania communities are currently experiencing fallout from the recent discovery that PFOA and PFOS contaminated the drinking water of over 70,000 residents. The contamination originates from two area naval bases. In February of 2017, residents filed a mass tort suit for personal injury claims in Pennsylvania state court against manufacturers and distributors of PFOA and PFOS-containing firefighting foams. Defendants include 3M, Tyco Fire Products, Buckeye Fire Protection Co., Chemguard, National Foam, and successors to the Ansul Company. In March of 2017, plaintiffs filed a class action lawsuit in the U.S. District Court for the Eastern District of Pennsylvania seeking over $5 million from manufacturers and distributors for blood testing, medical monitoring, a water testing program, awards for financial hardships, and punitive damages. Kyle Bagenstose & Jenny Wagner, Firms Combine PFC Suits, Seek Money, Tests for Residents of Bucks, Montgomery Counties, Bucks County Courier Times, Mar. 24, 2017, (May 22,2017, 5:15pm), http://www.buckscountycouriertimes.com/news/horsham-pfos/firms-combine-pfc-suits-seek-money-tests-for-residents-of/article_33e003df-2d4b-5821-80b7-9a3c55359b1a.html.

In addition to the litigation, Congressman Brian Fitzpatrick of Pennsylvania has stated that he plans to introduce a bill funding a comprehensive health study for those affected by the contamination and reimbursing water suppliers. Pennsylvania State Representative, Kathy Watson, who has consumed area water for 38 years, intends to introduce a bill designating PFOA and PFOS as hazardous substances under state law to induce the military to provide funding.

In Burlington County, New Jersey, both PFOA and PFOS were found at a combined level of 1,127 ppb in a stream near a military base’s wastewater treatment plant. At the time of this writing, the military and New Jersey’s Department of Environmental Protection (NJDEP) are working together to test private water wells in surrounding townships to determine the extent of remediation necessary. A 2016 New Jersey State Senate bill, S-2468, is proposing that the NJDEP adopt drinking water standards for PFOA as recommended by the Drinking Water Quality Institute.

The Future of Private Party Action as an Impetus for Federal Regulation of PFOA/PFOS

While federal awareness of PFOA and PFOS contamination developed in tandem with the private party actions surrounding the DuPont Washington Works Plant, the regulatory landscape has moved more slowly than private party litigation. Local water suppliers are on notice by virtue of EPA’s lifetime health advisory that these substances present a health risk and may warrant analysis. As more locations with PFOA/PFOS contamination appear across the nation, private parties will likely be on the front lines seeking damages for filtration, remediation, health screening, and personal injury. It remains to be seen how the federal government will respond on an across-the-board basis. Significantly, the question of whether to seek regulatory action under federal laws, such as SDWA, typically falls within the sole judgment of the EPA Administrator, currently Scott Pruitt. However, pressure from legislative branch members seeking to provide relief for communities in their home state, such as Congressman Fitzpatrick in Pennsylvania, and Senators Gillibrand and Schumer from New York, is building. In March of 2017, Gillibrand and Schumer sponsored a new bill requiring EPA to develop a maximum contaminant level (MCL) for PFOA and PFOS under SDWA. Until EPA acts, it is likely states will independently develop their own cleanup standards, resulting in variations across state lines and an increased need for counsel to monitor these issues as they develop in different forums. Until a uniform regulatory approach develops, it is reasonable to expect a surge in the number of private party actions filed in the face of this emerging public health issue. 

 

Ms. Munk is the managing partner and Ms. Manahan is a law clerk with Foley & Mansfield, PLLP, in Portland, OR.  They can be reached at imunk@foleymansfield.com and kmanahan@foleymansfield.com.