PFAS Observer
In the last eight months, the attorneys general of North Carolina, California, Wisconsin and Illinois have sued various primary manufacturers of per- and polyfluoroalkyl substances (PFAS), as well as over a dozen secondary manufacturers of PFAS-containing products. Each lawsuit alleges that the manufacture and distribution of PFAS and PFAS-containing products has led to widespread environmental contamination and harmful exposure.
In three of the four cases, the complaints evince the state’s intent to expand the scope of the litigation to other companies that have manufactured or sold PFAS products. Specifically, North Carolina, California and Wisconsin each have named “Doe” companies as defendants and are thus poised to amend their complaints to name new defendants once evidence to support such causes of action are identified. Although none of the states have demanded a specific amount of damages, each has indicated or is expected to contend that the defendants’ collective liabilities total billions of dollars.
The following is a brief overview of each action:
Wisconsin
In July 2022, Wisconsin’s attorney general filed a lawsuit against 18 companies and unnamed “Doe” defendants for allegedly contaminating Wisconsin’s water, property and natural resources with PFAS.1 Most of the named defendants are involved in the manufacture of AFFF, a fire-fighting product.
The Wisconsin lawsuit reflects the implementation of an objective set forth in the state’s PFAS Action Plan. Among other things, the lawsuit alleges that defendants were aware of the environmental and health risks presented by PFAS for decades and nevertheless continued to manufacture and distribute their products while allowing the public to believe that they were safe. The lawsuit further alleges that the State of Wisconsin will be forced to spend billions of dollars to remediate PFAS-related contamination. As such, the lawsuit seeks recovery of past and future remediation expenses, as well as the costs of implementing PFAS-biomonitoring programs, educational community outreach programs and remedying losses to the agricultural industry. The lawsuit also seeks punitive damages.
North Carolina
On October 18, 2022, North Carolina Attorney General Josh Stein filed two lawsuits against 14 companies and unnamed “Doe” defendants that, between them, have manufactured either perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS) or aqueous film-forming foam (AFFF).2
The two most studied PFAS compounds, PFOA and PFOS largely have been phased out of commerce, except for specific and/or legacy applications. AFFF is a widely used fire suppressant that historically has been manufactured using PFAS; accordingly, PFAS contamination associated with AFFF has been documented at or near locations at which firefighting activities tend to occur. These include locations such as airports, refineries and military bases. In this connection, one of the North Carolina lawsuits, Case No. 22-CVS-8123, concerns PFAS contamination at Piedmont-Triad International Airport in Greensboro, N.C., and the other lawsuit, Case No. 22-CVS-2812, concerns contamination at the Marine Corps Base Camp Lejeune and the Marine Corps Air Station New River, located near Jacksonville, N.C.
These lawsuits follow investigations of the groundwater near these facilities sponsored by the North Carolina attorney general that revealed elevated levels of PFOS and PFOA compared to the U.S. Environmental Protection Agency’s (EPA’s) June 2022 interim health advisory levels. As mentioned in a previous Pillsbury alert, these health advisory levels, which industry has criticized as unduly conservative, are likely to serve as default cleanup limits in the absence of true remedial endpoints. North Carolina appears to be treating the interim health advisory levels as enforceable standards.
The two complaints proceed on similar legal bases. Both assert claims for products liability and public nuisance. In both suits, the State seeks to recover an unspecified amount of property damages, economic damages and punitive damages, in addition to the costs of investigating, treating and remediating the PFAS contamination.
California
In November 2022, the California Office of the Attorney General brought suit against 18 companies and “Doe” defendants involved in the manufacture or commercial distribution of AFFF or products containing any of the following seven PFAS substances: PFOA, PFOS, perfluorobutanesulfonic acid (PFBS), perfluorohexanesulfonic acid (PFHxS), perfluorohexanoic acid (PFHxA), perfluoroheptanoic acid (PFHpA) or perfluorononanoic acid (PFNA”.3
As with the North Carolina lawsuits, the California complaint follows the State’s testing for PFAS contamination. Over the past several years, the California State Water Resources Control Board (SWRCB) has issued phased PFAS investigation and sampling directives to businesses which, because of their operations and proximity to potable water sources, are suspected of having a nexus to potential PFAS contamination.
California seeks civil penalties for violations of California’s unfair competition law, unspecified damages for harm to human health and the environment and injunctive relief in the forms of compelling remediation and the providing of alternative sources of potable water where existing supplies have been demonstrated to contain PFAS at unsafe levels. Unlike Wisconsin and North Carolina, California has not sought punitive damages.
Illinois
In January 2023, the Illinois attorney general filed suit against 15 primary and secondary manufacturers of PFAS products.4 Whereas the California suit is limited to companies with a nexus to a distinct subset of the PFAS, the Illinois suit has no such limits, except that it expressly does not apply to companies involved with the production and use of AFFF. The apparent intention here is to avoid a multidistrict litigation transfer.
Illinois’ lawsuit comes after a 2020 – 2021 investigation by the Illinois EPA identifying 18 PFAS chemicals in drinking water supplies across the state. Illinois is seeking damages for costs to monitor and remediate PFAS contamination, injunctive relief, statutory penalties under the Illinois Consumer Fraud and Deceptive Business Practices Act, costs of litigation and prejudgment interest. The Illinois lawsuit does not seek punitive damages.
Looking Forward
The science and law surrounding PFAS is evolving, and what holds true today may not be true tomorrow. Nevertheless, these lawsuits exemplify a current trend of states taking aggressive legal action against not only primary manufacturers of PFAS, but also certain secondary manufacturers (i.e., companies that use or integrate PFAS into the products they produce). Other states may well follow suit, especially as more federal PFAS-related regulations and state consumer protection laws go into effect.
Companies involved in or at risk of litigation or state enforcement actions may wish to consider proactive strategies to assess and minimize their nexus to PFAS and PFAS-containing products. One way to enhance the degree of confidentiality over internal evaluations is to have them performed by counsel under privilege.
Moreover, potentially affected companies should consider the full panoply of possible strategies to mitigate or offset PFAS-related liabilities. Insurance recovery should be in this toolkit. Insurance may be available for claims by states alleging groundwater contamination from PFAS, for claims by individuals alleging bodily injury from exposure to PFAS-containing products and for PFAS-related claims asserted against directors and officers. The insurance industry is likely to increase the breadth of PFAS-related exclusions in newly issued policies, though some companies may be able to avoid these exclusions with their brokers in connection with the underwriting of new insurance policies. Now is also the time to consider whether your company has pre-1987 occurrence-based policies, as these policies often contain broad wording, few exclusions and may cover modern-day claims if the “occurrence” or “property damage” or “bodily injury” is alleged to have commenced even decades ago.
Pillsbury attorneys have extensive experience with all these issues and are uniquely positioned to advise companies facing PFAS litigation and heightened environmental compliance.
1 See State v. 3M Co., Case No. 2022-CV-001795 (Dane Cnty. Ct.) (2022).
2 See State v. 3M Co., Case No. 22-CVS-8123 (Guildford Cnty. Ct.) (2022); State v. 3M Co., Case No. 22-CVS-2812 (Onslow Cnty. Ct.) (2022).
3 People v. 3M Co. (Alameda Cnty. Ct.) (2022); See Press Release.
4 See People v. 3M Co., (Cook Cnty. Cir. Ct.) (2023)