Emerging Litigation Podcast

Episode: The EPA's New PFAS Safe Drinking Water Rule with John Gardella
Host: Tom Hagy
Guest: John Gardella, CMBG3 Law
Date: October 31, 2024

Episode Overview

This episode delves into the EPA’s new Safe Drinking Water rule targeting PFAS (Per- and Polyfluoroalkyl Substances), with expert commentary by John Gardella, a leading PFAS litigator. The discussion addresses the origins, scientific basis, legal implications, industry challenges, costs, enforcement under the federal Superfund law, state-level actions, and what the future holds for PFAS litigation.

Key Discussion Points and Insights

1. EPA’s PFAS Regulation Journey

• Initial Steps:
  • The EPA’s regulatory push began in 2021 with the PFAS Strategic Roadmap.
  • Roadmap outlined planned regulatory efforts and testing over a three-year span.

    "Their efforts really all began in 2021 when the EPA put out its PFAS Strategic Roadmap. It's about eight pages. But it really lays out exactly where the EPA wanted to go with PFAS..." —John Gardella (03:38)

• EPA’s Goal:
  • The agency’s stated intent is aggressive pursuit of any party polluting with respect to PFAS—even outside traditional litigation.

    "The EPA intends to pursue any company or any party that believes are polluters... Those enforcement actions by the EPA very much do drive litigation." —John Gardella (04:08)

2. Focus Areas for Enforcement and Regulation

• Two Main EPA Priorities:
  • Safe Drinking Water Act enforcement
  • Superfund (CERCLA) actions for site cleanups

    "Really the two big ones are drinking water and the Superfund law." —John Gardella (04:42)

3. The Safe Drinking Water Rule

• Historical Advisory Levels:
  • Previously, there was a non-enforceable advisory limit of 70 parts per trillion (ppt).
• New Enforceable Limits:
  • Rule sets extremely low, enforceable limits: two PFAS at 4 ppt, three additional at 10 ppt.
  • Scientific and technological limitations prevented setting the goal of ‘zero’—the EPA’s MCLG (maximum contaminant level goal) states “no safe level.”

    "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..." —John Gardella (05:04) "There's no safe dose below which either chemical is considered safe." —John Gardella (06:49)

4. Litigation and the Power of EPA Statements

• Impact of 'No Safe Dose' Statement:
  • Statements on carcinogenicity and lack of a safe threshold will heavily influence future litigation, favoring plaintiffs and changing trial dynamics.

    "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." —John Gardella (06:49)

5. Implementation and Compliance Costs

• Staggering Financial Burden:
  • The projected cost to industry and upstream polluters is estimated at $200 billion per year, not counting water utility expenditures.

    "A middle point of all the estimates that I've seen is this $200 billion year over year costs ... to actual companies." —John Gardella (08:16)

• Layered Liability:
  • Companies will seek contribution from others who may share contamination blame, breeding vast networks of litigation.

    "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..." —John Gardella (09:26)

6. Real-World Litigation Scenarios

• Permitted Discharge Example:
  • Companies historically discharged effluent lawfully, but now face cleanup liability due to newly regulated PFAS.

    "Despite these fully permitted discharges ... this manufacturing company was sent a notice of responsibility ... and the company has already had to pay out $2.5 million in just ... preliminary cleanup and technological costs." —John Gardella (10:36)

• Extreme Case Study:
  • Tire facility fire (2010) involved PFAS-laden foam. Ten years later, state regulators retroactively imposed cleanup costs.

    "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..." —John Gardella (12:32)

7. Superfund (CERCLA) Implications

• New Listings:
  • As of April 2024, PFOA and PFOS now listed as hazardous substances under CERCLA; seven more PFAS may soon follow.

    "Anyone familiar with ... Superfund site cleanups knows ... they're very, very time consuming... somewhere in the range of hundreds of billions of dollars in costs every year..." —John Gardella (14:52)

8. State-Level Regulation and Litigation

• Divergent State Standards:
  • Over 20 states set their own PFAS limits before the EPA; state limits can be stricter than federal.
  • Standards vary from as low as 2 ppt (proposed NY) to over 667,000 ppt (MN).

    "The problem with the states is that it's basically wildly divergent in terms of what they're doing." —John Gardella (19:32)

• All-Products Bans:
  • Some states (e.g., Maine, Minnesota) are banning all PFAS products, adding complex supply chain compliance and reporting, and furnishing plaintiffs’ bar with valuable data.

    "Embedded in all of these states regulations ... is a reporting requirement... it's going to be an incredible resource for the plaintiffs bar..." —John Gardella (20:39)

9. PFAS Multi-District Litigation (MDL) Developments

• MDL in South Carolina:
  • Major manufacturers (3M, DuPont, Tyco, BASF) have settled for ~$15B for water utility claims, but not for personal injury claims.
  • Bellwether personal injury cases are set for trial in late 2025, and will be pivotal for future litigation strategies.

    "So a lot is going to come out of that ... expert reports, expert testimony, causation issues." —John Gardella (22:30)

• Settlement Misnomers:
  • Settlements are insufficient:

    "Even though we have about 15 billion in ... settlements ... that's really only going to scratch the surface and water utilities are going to be left only getting pennies on the dollar..." —John Gardella (26:12)

  • Anticipated that water utilities will bring further claims against upstream sources to recover costs.

10. Rise of Class Actions, Medical Monitoring, and Consumer Fraud Claims

• Class Actions:
  • Increase in property devaluation, land contamination, and personal injury class claims, apart from the MDL.
• Medical Monitoring:
  • Plaintiff claims for medical surveillance (not yet injured, but potentially exposed) add another expensive layer.

    "It is typically estimated a medical monitoring program to set up is about $15,000 per plaintiff..." —John Gardella (28:18)

• Consumer Fraud:
  • Lawsuits alleging false marketing (“green,” “safe,” etc.) when products contain PFAS.

    "So, you know, you, company have deceived and misled consumers and committed fraud... I would expect the plaintiffs to fine tune their complaints... and see more and more of these cases being filed." —John Gardella (29:41)

11. Litigation Forecast

• Explosion in Cases:
  • Expect a dramatic uptick in class actions, especially as scientific data on specific causation improves.
  • Medical monitoring, new personal injury, and consumer protection litigation poised to grow exponentially if the federal rule survives court challenges.

    "Fully expect the class action lawsuits are going to be increasing year over year... medical monitoring claims are going to follow along right with that..." —John Gardella (31:47) "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." —John Gardella (31:47)

• Reptile Theory:
  • Anticipate use of fear-based strategies in court to persuade jurors PFAS in daily products are “deadly,” echoing tactics from talc and asbestos litigation.

    "We're going to see a lot more of the reptile theory of litigation for PFAS personal injury... striking fear in the hearts of the jurors that these everyday products... have had these 'deadly chemicals' in them and no one told us." —John Gardella (33:11)

Memorable Quotes & Notable Moments

• On the new limits’ influence:
  "There's no safe dose below which either chemical is considered safe." —John Gardella (06:49)

• On the scale of litigation:
  "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..." —John Gardella (09:26)

• On the reality of settlements:
  "These settlements will solve all the water utilities problems. Absolutely false." —John Gardella (26:12)

• On future litigation:
  "By 2026 and beyond... consumer products and personal injury... to have really taken off." —John Gardella (31:47)

• On plaintiff tactics:
  "We're going to see a lot more of the reptile theory of litigation for PFAS personal injury..." —John Gardella (33:11)

Key Timestamps for Important Segments

| Timestamp | Key Topic | |-----------|---------------------------------------------------------------| | 03:38 | EPA’s PFAS roadmap: origins and goals | | 05:04 | Shift from advisory to enforceable PFAS drinking water limits | | 06:49 | Litigation impact of “no safe dose” EPA language | | 08:16 | Enormous estimated compliance and litigation costs | | 10:36 | Real-world example: permitted discharger meets new liability | | 12:32 | Extreme case study: retroactive liability for foam user | | 14:52 | Superfund (CERCLA) listing and its effects | | 19:32 | Wild divergence in state-level regulatory standards | | 20:39 | All-products PFAS bans and their litigation impact | | 22:30 | MDL litigation: settlements, unsettled claims, and trends | | 26:12 | Clarification on limits of settlement impacts | | 28:18 | Medical monitoring as a class action cost driver | | 29:41 | Growth of consumer fraud PFAS claims | | 31:47 | PFAS litigation forecast: key trends and expectations | | 33:11 | Scientific hurdles to personal injury claims; reptile theory |

Conclusion

The episode paints a detailed picture of the legal, regulatory, and practical turbulence unleashed by the EPA’s new PFAS drinking water rule. With the agency’s aggressive stance, evolving science, and a cascade of federal and state actions, companies face mounting litigation risks and astronomical costs. The legal landscape promises increasing complexity, broader liability, and a race to define the science and causation thresholds that will shape PFAS litigation for years to come.