B (3:38)

Their efforts really all began in 2021 when the EPA put out its PFAS Strategic Roadmap. And you know, it's worth a read. It's actually not that dense at all. It's about eight pages. But it really lays out exactly where the EPA wanted to go with PFAS and regulations and testing and areas that it was really going to look into in this three year window.

A (4:03)

Sean, what can you tell us about the EPA's goals with regard to PFAS?

B (4:08)

Throughout the EPA's PFAS roadmap and even the one that's the update is the explicitly stated goal that the EPA intends to pursue any company or any party that believes are polluters of the environment with respect to PFAs. And so that's something that is not technically litigation per se. I call it an enforcement action. But those enforcement actions by the EPA very much do drive litigation.

A (4:36)

But from a litigation perspective, what are the primary areas of focus that the EPA is paying attention to?

B (4:42)

So, you know, there are two big things there. As anyone who's been following PFAS knows with the epa, there's probably about a dozen initiatives that they've undertaken, but really the two big ones are drinking water and the Superfund law.

A (4:58)

Is there a level of PFAS that's considered safe in drinking water?

B (5:04)

There had been for many years a advisory level of 70 parts per trillion. But again, advisory levels are simply what they sound like. They're advisories. They are not enforceable in any way. Of course, with the advent of the 2021 roadmap, the EPA undertook to change that considerably and create enforceable limits for PFAS and drinking water. And in April of this year, they put out the final rule under the Safe Drinking water Act for PFAs, there are six, I'm sorry, five PFAs that are regulated, and they differ slightly, but two of them have four parts per trillion, and three of them have 10 parts per trillion. Now, sort of embedded in what the EPA did, aside from, you know, putting out these parts per trillion limits, is essentially stating that in terms of the maximum contaminant level goal, which is sort of a technical way of saying what the EPA would have liked to have done if it could have, is that the EPA would have said there's no safe level for any of these particular PFAs. So, in other words, what they would have preferred to do is create a zero parts per trillion limit. Science and technology limited that, though, because it's not possible right now to reliably test below 4 parts per trillion for PFOA and PFOS, and below 10 parts per trillion for the other three on the screen. So the technological limits sort of force the EPA's hand unless we have the limits that we have today.

A (6:40)

Talk about the statement embedded in the EPA rule that has to do with the harmful effects of pfas and why you think it will play a vital role in litigation for years to come.

B (6:49)

Because they're making some key statements here about the carcinogenicity of particular PFAs. And, you know, key to me anyway, as an attorney, especially on the defense side, is the statement that there's, quote, no safe dose below which either chemical is considered safe. If you're familiar with any other toxic tort litigation, you know, benzene, lead, asbestos, you know, PCBs, you name it, and personal injury, those are the types of statements that ring true in the courtrooms in litigation when these cases are litigated. That's something very much that plaintiff's attorneys and their experts like to parrot during their testimony. And, you know, it does have jury influence, for sure. When people hear the EPA saying that type of thing, it carries weight. So it will certainly be something that will come up in the PFAS litigation as well.

A (7:44)

Aside from future predictive elements that the EPA drinking water regulation will impact, what will be the more immediate impact? I take it? Simply, the cost to implement the required changes will be very high. The cost to implement and install the necessary technology. For example, we're seeing some very high totals. During your webinar, you talked about the high costs of just implementing technology to bring a company within compliance with the regulation. So talk about what the costs are.

B (8:16)

Beyond that when we take it a step further and really, you know, dive deeper into well, what will it take to clean up sort of upstream contamination sources? In other words, what industries and companies may have been or are putting into the water which ultimately feeds drinking water, and then in turn, what litigation may come from that, that's where you get these estimates. And sort of a middle point of all the estimates that I've seen is this $200 billion year over year costs, costs that are not to the water utilities. These are costs that are going to be for those down. Those companies should probably say upstream, because it's literally upstream. You know, companies that may have been putting PFAS effluent or water into waterways, but that's going to be as many insurance and sort of water association estimates are projecting right now to actual companies. You can see that's massive and that's significant.

A (9:22)

What is driving the huge projected costs attached to this new rule?

B (9:26)

Let's say a company, not a water utility, but a company that's been discharging PFAS effluent into waterways historically gets a notice from the EPA saying, we believe you're responsible for contaminating drinking water sources because of your discharge practices. You need to pay to clean it up. You know, not only will that company be on the hook, but it's going to in turn turn around and try and find other companies that were doing very similar things and contributing to the contamination in the surrounding areas. Now, oftentimes, that is litigation that needs to ensue in order to bring those parties into action. And that's where you get these, you know, very, very high litigation estimates that you see right here, the $200 billion year over year. So very significant impact that this rule is going to have.

A (10:21)

Do you think everybody's just going to be okay with these, these rules?

B (10:25)

I do expect legal challenges and time will just have to tell in terms of how successful they are.

A (10:31)

Can you give us an illustration of how you see this playing out in the real world?

B (10:36)

So, you know, take any manufacturing company you can imagine, and for many years it's been appropriately discharging water effluent into streams adjacent to a facility. Important to note is that this is almost always permitted and has been approved. You know, historically, PFAS was not something that needed to be tested and reported in this type of effluent. So the permits were granted for effluent with any regulated chemicals. Today, of course, we are now regulating, or the EPA is now regulating pfas. So the picture is much different. So despite these fully permitted discharges into water, this manufacturing company was sent a notice of responsibility by the state arm of the EPA to pay for the cleanup of the drinking water contamination. With respect to PFAS. This was started in 2022. We're about actually not even two years into it. Two years would be the end of 2024 and the company has already had to pay out $2.5 million in just kind of initial and preliminary cleanup and technological costs. So this doesn't include any sort of legal actions that may be brought against other entities. As I mentioned, exploration of upstream and other sources of pollution is something that's very much at play here. And you know, in the years to come, if not the months to come, these costs will increase due to trying to bring in other parties as well.

A (12:13)

John, during your webinar you presented a fact, pattern or case study that you said illustrates the extremes to which the government will go to to hold parties responsible for cleanup. Can you share that with us? The facts began with an incident in 2010.

B (12:32)

There was a small fire at a tire recycling facility. Now, due to the nature of the fire or what the fire department on hand, PFAS containing firefighting foam was used to put out the fire. At the time in 2010, nobody really thought anything of PFAS. Nobody cared. The state level Department of Environmental Protection examined the site after the fire, didn't care about PFAS and closed out this case entirely, said everything's fine in 2020. Ten years later, when PFAS and drinking water was a concern, they went back and they looked at old firefighting records and determined that because of the foam that was used on this company's site, it potentially may have contributed to PFAS contamination in the drinking water sources nearby. As a result, this company was sent a notice of violation which is similar on the previous screen to a notice of responsibility. And again, this property owner is responsible currently, and this is still ongoing for cleanup costs associated with this fire over which it really had no control on its site. And again, you know, other third party litigation and trying to bring in other responsible parties is something that's very much at play in this case study as well. So again, this is an extreme example, but I like to use it because it does show that we really need to think about this impact on litigation and companies, not just from, you know, sort of natural, quote unquote targets that you might think of like chemical companies that have been discharging into waterways for decades or even manufacturing industrial companies. The EPA and certain states and their EPA arms have certainly shown over these years with PFAS that they're going to aggressively look into potential sources of PFAS contamination. And therefore you need to look much broader than just sort of what you mean, your gut may tell you is sort of a prime target for this type of action.

A (14:43)

You also discussed during the webinar the federal Superfund law, or cercla and its impact on polluters. What'd you say about that?

B (14:52)

In order for the EPA to actually go after any parties and get polluters to pay for cleanup costs, or parties that they believe were polluters to pay for cleanup costs, they have to list the chemicals that they wish to remediate as hazardous substances. Up until last month, or, excuse me, April of this year, there were no PFOs listed under CERCLA. That changed in April. PFOI and PFOS were both listed. And you know, sort of concurrently with this, in the last several months, the EPA has put out what you see on the screen, the ANPRM, or Advance Notice of Proportion Proposed Rulemaking, which basically say that they Wish to list seven additional PFAs under the Serpent Fund law in the coming months. So again, what, what's the impact here? Well, anyone familiar with CERCALA or Superfund site cleanups knows that they can be quite costly and they're very, very time consuming. You know, the, the impact here financially is very hard to measure, mainly because it's dependent on so many different factors. First and foremost among them, what the EPA actually has time, resources and person power to actually go after for polluter pursuit and actual cleanup responsibility. So nevertheless, you know, economic risk professionals, in terms of estimates that I've seen, as well as insurance company estimates that I've seen, are somewhere in the range of hundreds of billions of dollars in costs every year to companies that are actually brought into circle of matters. It's a mantra that applies to drinking water and CERCLA here, and I'll repeat myself a bit, but for anyone that is brought into a circle, action is to pay for these quite costly cleanups of a site. The natural inclination is to try and bring in as many potential parties as possible who may have also contaminated or contributed to the pollution. And so that's naturally done oftentimes through litigation. So there's significant costs not only from the cleanup aspect, but from litigation, because naturally, the more parties you can bring in, Even if they're 1% responsible, for example, well, that's 1% less that you have to pay to potentially 100 million or hundreds of millions of dollars for a cleanup site, which is Significant.

A (17:28)

So that's the discussion at the federal level. What about the state level and legislation, proposed regulations going on there?

B (17:37)

There are literally hundreds of PFAS pieces of legislation out there that have been introduced or proposed over the last few years. You know, every year we see over a hundred, if not hundreds of proposed pieces of legislation at the state levels for PFAs.

A (17:57)

What factors are driving costs and litigation against companies at the state level?

B (18:02)

The first is the drinking water standards. So before the EPA ever took action in April of 2024, there were just over 20 states that had their own enforceable drinking water limits already. So what that meant, and has meant over the years, is that those states have been going after already parties that it feels have contributed to drinking water contamination with respect to PFAs. So those notices of violation, notices of responsibility, they've been sent out. Parties are having to pay for costs. They're going into litigation. They're trying to bring other parties in. All of those costs that we just talked about have been happening at the state level, of course, with the EPA regulation. If it is finalized and, you know, passes legal challenges and challenges in the courts and the EPA is able to actually pursue, then this Standard that the EPA set automatically applies to all 50 states. So, you know, states are allowed, most states are allowed to put in place limits that are below the federal levels if they wish. But the federal level is, of course, the bar, the minimum threshold for all 50 states once that rule has passed muster and is effective.

A (19:24)

So when somebody looks at the state versus federal levels in terms of PFAS drinking water standards, what challenges arise for them?

B (19:32)

The problem with the states is that it's basically wildly divergent in terms of what they're doing. Some states regulate 2 PFAs, some are up to 20 in drinking water, some are as low as 5 parts per trillion. New York has proposed trying to put it down all the way to two. And then there's one state, I believe it's Minnesota, who's as high as 667,000 parts per trillion. So it's really a huge spectrum in terms of what's going on. And it's very difficult for companies, as a result, to always come into compliance, especially if they have footprints in many different states. But the point here of this discussion is that all of these regulations at the state level for drinking water are also driving litigation and litigation costs in the same way that we just discussed at the federal level.

A (20:24)

Got it. So. So you've talked about now how challenging it becomes for companies to come into compliance within states, given the wildly divergent standards across them, what's another challenge companies are running into? And what's the impact on litigation?

B (20:39)

What I call all products, all PFAS bans, and in short, what they are is these proposed legislations that say, you know, by X date, if you have PFAS in your product and you're selling it in the state, either the PFAS has to be out entirely or you cannot sell your product in the state. Maine and Minnesota are two states that have already enacted this legislation, this rule, and there are four other states, as you see here, that have proposed it. I think there will be more. Obviously, there's a huge impact that that type of legislation will have. You know, manufacturing disruption, figuring out how to even come into compliance. What does a PFAS mean? How is it being defined? How can you get the information you need from supply chain to figure out if you have PFAs? But, you know, critically for us in our discussion is this last point. You know, because embedded in all of these states regulations that are the PFAS ban regulations is a reporting requirement to the state. In other words, you have to disclose as a company whether your product has PFAS in it and which types and why and in what quantity. That is all public information or information that can be fairly easily obtained from a state. And it's going to be an incredible resource for the plaintiffs bar who are either looking to bring in the future product liability lawsuits or who are pursuing environmental pollution lawsuits as well. They have at their fingertips information that they can use for either type of litigation avenue.

A (22:17)

What can you tell us about the MDL litigation that's been going on for as long as eight years in South Carolina? Are there any key takeaways there that give us a hint of what litigation is going to be like going forward?

B (22:30)

So we have, of course, settlements by Dupont3m and Tyco. And actually to add to the list very recently is BASF, recently had their own settlement for $316.5 million. And what each of these parties has done is set up these settlement funds to try and resolve the portion of the MDL in which water utilities themselves are suing these companies, again, to try and get costs for the necessary technology to remediate PFAS at the water utility itself. So very, very significant numbers, obviously. I mean, we're looking in total at about, you know, $15 billion in available funds for water utilities. We'll get to that. Come back to that in a second. But there are two other things that are also going on, you know, there are other manufacturers that are left in these Water U cases. There is a January 2025 NOW trial date for a bellwether, and those parties are diligently working to try and enter into their own settlements or go to trial if necessary. Then there is shortly behind that and kind of ongoing right now as we speak, this concurrent track of personal injury bellwethers against all of defendants. And I want to remind everyone, you know, 3M Dupont, Tyco, BASF, they have all settled, but they did not settle these personal injury cases. So they're still litigating those. And so if there are going to be settlements on the personal injury side, expect to see those certainly in, I would say probably next year, honestly, maybe sooner. But next year is more likely because the trial date is probably going to be towards the end of 2025 for that bellwether. So, you know, the injury portion of this is really for any litigators out there where you want to follow what's going on terms of expert reports, expert testimony, causation issues. This is really the first time outside of the, you know, 10, 12 years ago now that the famous Rob Balot dark waters lawsuit was brought, where personal injury and causation issues are going to be directly at issue in this MDL on the, on the personal injury track for the bellwethers. So a lot is going to come out of that and, you know, a lot is going to tell plaintiffs attorneys either how they need to adjust their strategy moving forward if there are unfavorable rulings or, you know, unfavorable jury verdicts for them, or on the defense side, you know, where are the weaknesses and what they are presenting on the causation side and what will the impact of that be on sort of more tangential claims, personal injury claims that can be brought by plaintiffs attorneys that are not firefighting from cases because all the MDL claims are firefighting foam related. You know, just the classic example everyone likes to say is, all right, so could Teflon pans be the, you know, a litigation track for personal injury? Sure, in theory. And it's this kind of evidence expert issues that are going to be tested at the MDL level for personal injury and causation that are going to drive how that other type of litigation and personal injury litigation evolves as we move forward. So very, very critical going on in the MDL right now regarding the impact.

A (26:04)

Of the MDL and the settlements. You said that in the webinar that there's a misnomer that people should Be aware of what is that.

B (26:12)

I often hear this quote, these settlements will solve all the water utilities problems. Absolutely false. It is well recognized by all sides and I believe every industry and insurance industries and whoever you speak to, that even though we have about 15 billion in approved settlements or pending settlements available to water utilities, that's really only going to scratch the surface and water utilities are going to be left only getting pennies on the dollar in terms of what they need to 100% install technology to remediate.

A (26:48)

Now what about the other quote you displayed during the webinar that these settlements will lead to claims and litigation against upstream companies by the water utilities?

B (26:59)

I believe that's absolutely true because one of the quicker ways for water utilities to consider getting the rest of the money that they actually need is to pursue companies literally upstream that have been discharging into their, into the waterways. And those waterways have been feeding, you know, the water sources for the water utilities that they turned into drinking water. So that is something very much to watch. It's something that I would predict is coming and it will be very interesting to see how it plays out in years to come.

A (27:31)

We talked about the mdl. The other way to handle mass claims, of course, is through class actions. What can you tell us about that?

B (27:39)

These are, you know, massive, sometimes massive, sometimes sort of small numbers of plaintiffs that band together and bring claims jointly, claiming land contamination, property devaluation, sometimes personal injury, et cetera. There's a huge uptick in the number of these. And again, this does not include what's being filed in the mdl, firefighting phone claims. This is totally separate from that.

A (28:08)

These are expensive lawsuits to defend. But you said that there is another aspect to these which also makes them expensive and complicated. What is that?

B (28:18)

The rise of medical monitoring that is embedded in these lawsuits. These are for anyone who's not familiar. Medical monitoring claims are ones that say, well, I'm not injured yet, but I think I might be because of the way the PFAS in the science has been linked to certain diseases and potential injuries. And therefore you need to pay for my medical treatment, to monitor, to make sure I don't develop those diseases. And if I do, you need to pay for my treatment. It is typically estimated a medical monitoring program to set up is about $15,000 per plaintiff. So of course, if you have, you know, a thousand plaintiffs, you know, maybe not a huge significant dollar value in terms of potential costs there, but if you have 10,000 plaintiffs and get a huge class, significantly different picture in terms of costs. So you can imagine how that plays out. But it's something that is going to be challenged for sure legally because some states allow medical monitoring, some don't, and some are silent and haven't ruled on it. So it's something that regardless if it's been answered or not, I would expect either side to try and challenge it to get the result that they want.

A (29:32)

And there's another aspect of this litigation that you and I have talked about before and you've written about is the rise of the consumer fraud claims.

B (29:41)

We've seen this for the past several years. And for anyone not familiar, you know, these are in their very simplest form. You know, company manufactured a product or put it on the market and they, they marketed or sold it or promoted it to be any kind of buzzword that you can see here on the screen or any other buzzword related to those in quotes here. However, then the product was tested and contains pfas. And PFAS are none of those things. They're not healthy, they're not safe, they're not green, they're not environmentally friendly. So, you know, you, company have deceived and misled consumers and committed fraud. So the damages, of course, that are typically sought are the full value of each item sold in the stream of commerce in a particular time period in a particular state. So, you know, this potentially quite significant depending on the market that a company has in a particular area for a particular time period. And you know, they are lawsuits that need to be defended. There's been some success in defeating some of them, but some of them have been allowed to proceed. So they are certainly not, you know, all going to go by the wayside. And I would expect, I would expect the plaintiffs to fine tune their complaints moving forward and see more and more of these cases being filed. I think this slide here kind of supports what I just said. You can see some of the industries that have been targeted already, but there's obviously in the past two or three years a significant uptick in the number of these cases. But again, you know, even though there have been some recent rulings that have been successful for defense, some of them have been dismissed without prejudice. And so they can be refiled and sort of again, the complaint can be fine tuned to adjust for what the court's ruling was. So I would expect to see that.

A (31:43)

Well, let's conclude with your outlook for PFAS litigation. What do you see coming?

B (31:47)

Fully expect the class action lawsuits are going to be increasing year over year. They are potentially a quite lucrative area for plaintiffs attorneys to file lawsuits, and they are significant dollar values in terms of potential damages. At the same time, medical monitoring claims are going to follow along right with that. And so I think they will be tested in state supreme courts in terms of whether or not they are a viable claim to bring under tort law. And then, you know, the litigation and the enforcement actions, as we've talked about already under the Safe Drinking Water act in cercla, whether at the federal level or at the state levels, will just continue to increase and will skyrocket if the federal rules do actually pass. Beyond that, I would look towards the personal injury lawsuits for consumer products going on the rise. And again, you know, a lot of what's being done right now is a wait and see approach with the MDL to see how causation issues play out there. But I would expect by 2026 and beyond, for test cases, if not a fairly robust PFAS litigation in this realm, consumer products and personal injury, to have really taken off.

A (33:04)

Why do you think we haven't already seen an increase in consumer products and personal injury claims?

B (33:11)

The reason it hasn't yet and the reason it needs a little more time is because of what we call dose response. Basically, while there is, you know, perhaps general causation, that could be more easily proved in some ways for some PFAs. In other words, you know, PFOA is capable of causing X in general. It's when you get into the specific causation question that there's still some gaps for the plaintiffs. That is. And you know, that would be more like me, John Gardella, use my teflon pan for 10 years every day to cook my meals. Well, did I get enough of an actual dose from that use for that frequency to have caused that disease? That's alleged. That's where it becomes tougher for plaintiffs. Right now, the science is not quite there yet in terms of figuring that out and putting out these sort of doses or safe doses that we have for many other toxins like asbestos, lead, benzene, whatever it might be. So, you know, I'd expect that to develop on the science side. And in turn, the plaintiff's bar will start filing more of these cases. And at the same time, you know, as we've seen, we're going to see a lot more of the reptile theory of litigation for PFAS personal injury, which is basically a litigation tactic and style of sort of striking fear in the hearts of the jurors that these everyday products that we've all been using for years have had these quote, unquote deadly chemicals in them and no one told us. And so these companies need to pay. That's sort of the reptile theory of Lyn King in a nutshell. I would very much expect to see that play out as it has especially in the talc and the asbestos litigation in the most recent years, and to be a play in PFAS litigation as well.

A (35:06)

That concludes this episode of the the Emerging Litigation Podcast, a co production of HP Litigation, Critical Legal Content, Velec's Fastcase and our friends at Losty Media. I'm Tom Hagee, your host, which would explain why I'm talking. Please feel free to reach out to me if you have ideas for a future episode and don't hesitate to share this with clients, colleagues, friends, animals you may have left at home, teenagers you've irresponsibly left unsupervised. And if you feel so moved, please give us a rating. Those always help. Thank you for listening.