What are PFAS?
Per- and Polyfluoroalkyl Substances (PFAS), which include most prominently perfluorooctanoic acid (PFOA) and perfluorooctansulfonic acid (PFOS), among others, are a class of thousands of fluorinated chemicals manufactured and used in various industries around the globe since the mid-1900s. The unique ability of PFAS to repel both oil and water led to their application in many products, including items such as stain and water-repellent fabric, chemical-and oil-resistant coatings, food packaging materials, plastics, firefighting foam, industrial fume suppressants, solar panels, and others. The carbon-fluorine bond is the strongest in nature, making these compounds highly persistent and ubiquitous in the environment. Since the early 2000s, many long-chain PFAS chemicals, including PFOA and PFOS, have been phased out of production in the US, although “replacement” and lesser-studied “next generation” PFAS continue in use.
Because these substances are both highly soluble and persistent in the environment, environmental agencies, public interest organizations, and plaintiffs’ attorneys began raising questions over a decade ago about the environmental and public health impacts of PFAS. Evolving science, coupled with widespread detection in the environment and human blood serum, has caused a recent escalation in PFAS regulatory activity and litigation.
The effort to regulate PFAS at the federal level has been led by the Environmental Protection Agency (EPA). PFAS risk assessments have focused predominantly on contamination of drinking water sources, but there is still no legally enforceable federal maximum contamination level (MCL) for PFAS under the Safe Drinking Water Act. The timeline of effort on this front includes:
EPA is also using its existing legal authorities to pursue a broad range of PFAS enforcement actions.
Additional regulatory and enforcement actions at the federal level are anticipated; however, states continue to fill the regulatory void by setting limits of their own. To date, states including Michigan, New Jersey, New York, and Vermont enacted regulations to establish enforceable MCLs much more stringent than EPA’s health advisory. For instance, Michigan created some of the nation’s most comprehensive regulations limiting PFAS contamination in drinking water, setting drinking water standards as low as 6 ppt. Additionally, some states enacted disclosure and reporting requirements for certain products containing PFAS; some enacted legislation prohibiting or otherwise restricting the use of PFAS in firefighting foam, food packaging, and consumer products, such as cosmetics, rugs and carpets, textiles, children’s products, and ski wax; while still others (like Maine) passed sweeping bans on all product containing intentionally added PFAS. Further, states are adopting a broad definition of PFAS in their regulations to mean “any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.”
PFAS scrutiny has sparked a wave of both environmental and tort litigation across the United States. The majority of claims are asserted against PFAS manufacturers, but downstream industrial users of PFAS in their manufacturing processes or products are increasingly being sued by public and private plaintiffs. A multidistrict litigation pending in South Carolina federal court has consolidated thousands of cases against common defendants relating to environmental contamination, property damage, and personal injury allegedly resulting from industrial and municipal use of PFAS-containing fire suppressant foams (AFFF). Other broad classes of litigation include: (i) state litigation to recoup natural resources damages and costs associated with environmental remediation; (ii) claims by local water authorities to recover cleanup costs from manufacturers and premises owners; (iii) class actions based on public nuisance theories seeking property damages and medical monitoring; and (iv) individual personal injury actions. Recent activity suggests potential growth in PFAS consumer product litigation. At the core of the pursuit and defense of these claims is a constantly expanding body of epidemiological, toxicological, and environmental scientific literature.
Our PFAS Team and Experience
Hunton Andrews Kurth LLP’s PFAS practice is interdisciplinary, with experience in state and federal regulatory, litigation, and technical issues related to PFAS. Our team includes former agency lawyers, in-house counsel, engineers, and government officials. We represent clients in PFAS litigation and enforcement actions and advise on PFAS regulatory compliance and clean-up. We have presented to a range of industry groups on both niche and broad PFAS-related subject areas. Publications such as The American Lawyer, National Law Journal, Chambers USA, Legal 500 United States, US News Best Lawyers, and Global Investigations Review recognize our practice and lawyers for their results and approach to client service.
Our interdisciplinary team works collaboratively among itself, within our firm, with clients and their technical personnel, and with local counsel, to support client projects across multiple jurisdictions. We understand our clients’ business needs and we partner with in-house counsel to deliver pragmatic solutions to ever-changing regulatory and litigation matters. We serve as national or worldwide coordinating counsel for many clients, across jurisdictions, where actions taken in one matter or case may have significant consequences in another. We implement strategies to advance overall goals while striving to minimize risk.
Hunton’s PFAS team also monitors and understands the science behind PFAS. We have developed a team of qualified non-attorney experts across disciplines for assistance behind the scenes and in the courtroom and we actively track relevant scientific literature. We have in-house scientists, many with PhD’s, to aid in dissecting and evaluating the scientific underpinnings of costly environmental, health, and safety regulations, and to objectively present complex technological information and processes to support client positions regarding regulatory actions. Our familiarity with the technical aspects of PFAS, and the team’s technical background in chemistry, toxicology, engineering, and in-house risk management, allows us to thoroughly and efficiently support all aspects of a client’s efforts to manage this important issue.
Our PFAS experience includes: