The list of toxic contaminants that spawn costly environmental litigation and propel our research projects expands constantly. One of the latest additions is the family of PFAS (per- or polyfluoroalkyl substances), which currently appear on track to have the same staying power in the world of toxic tort litigation as many of the other chemicals whose production and use we routinely document. Last year, Taylor Research Group highlighted our focus on two PFAS, perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA), which were ingredients in firefighting foam. Since that time, this family of so-called “forever chemicals” has gained increasing attention.
There is no greater proof of this than Dark Waters, a Hollywood film starring Mark Ruffalo released late last year. The film was inspired by the true story of PFOA contamination from DuPont’s Washington Works near Parkersburg, West Virginia. Plaintiffs alleged in 2001 that diseases, including kidney and testicular cancer, were linked to the plant’s PFOA discharges. Dupont and its spinoff, Chemours, entered a 2017 settlement, but related litigation has continued into 2020. Attorney Rob Bilott, the protagonist in Dark Waters and the author of the book that inspired it, now represents a class of plaintiffs exposed to PFAS from all causes—a potentially enormous population, given that sampling has indicated that 99% of Americans have PFAS in their blood. Meanwhile, the focus of new litigation has increasingly shifted from PFAS manufacture to their use and disposal by downstream users.
The above map shows the former DuPont Washington Works that was the initial focus of PFAS concerns in West Virginia. (Source: EPA)
PFOS and PFOA contamination from discharges of firefighting foam (commonly known as AFFF) continues to spawn litigation, as the chemicals have been detected in groundwater around airfields and other facilities nationwide. Additional litigation concerns a variety of other PFAS-containing end products, which have historically included stain repellents and stain repellant carpet, waterproof garments, and coated papers, including fast food packaging. Attention is also now being directed to the widespread use of PFAS in manufacturing—not just of PFAS-containing end items, but within industries such as construction and aerospace.
As a result of these legal developments, our work has expanded in scope since we began conducting some of the first historical research into the usage and disposal of PFAS end products. Our methodology, however, has remained the same: a combination of targeted federal, state, and local research, tailored to fit our clients’ specific needs and to maximize our chances of finding those proverbial “needles in a haystack.” AFFF research typically demands a heavier concentration on federal and state records due to the military’s dominant role in its use. Even at federal military sites, state officials often documented PFAS discharges, sometimes in coordination with the U.S. EPA. Our increasing focus on the manufacturing side of PFAS usage may still involve federal and state records, especially when government contracts are involved, but it also requires us to cast a wider scope that includes local and even surviving company records.
The New York State Archives and Library in Albany are two of the many repositories that TRG routinely visits to find documentation related to historical chemical usage. Even at federal military sites, state officials often documented PFAS discharges, sometimes in coordination with the U.S. EPA.
Evidence of PFAS toxicity continues to accumulate, including a National Toxicology Program report released in May showing evidence of carcinogenic activity linked to PFOA exposure in rats. Today, there is also growing concern about the potential health hazards posed by lesser-known PFAS, including “short-chain” variants such as GenX. Short-chain PFAS, which often replaced discontinued long-chain chemicals such as PFOS and PFOA, are still in production and widely used. Recent reports indicate that while long-chain PFAS have adverse effects at lower doses and clear the body slower—traits thought to make them more harmful—both long-chain and short-chain PFAS were toxic to the liver and thyroid in animal studies.
At the same time, our understanding of the extent of PFAS contamination continues to evolve, with studies shedding new light on the chemicals’ presence in drinking water supplies and even rainwater. Most recently, in response to a statement from the Agency for Toxic Substances and Disease Registry, several senators have called on the federal government to examine a possible connection between PFAS exposure and an increased risk of complications related to COVID-19.
The extent to which a more active federal response would affect the scope and urgency of PFAS litigation remains to be seen. What remains certain is that TRG will continue to follow the legislative trends and adapt to our clients’ evolving needs related to PFAS research.