By Ken Sansone
As the federal government ramps up the regulatory process for enforceable limits on PFAS in drinking water, estimated to cost billions annually, an environmental attorney details how utilities can hold polluters — instead of ratepayers — financially responsible.
By now, you probably know that the U.S. EPA recently proposed maximum contaminant levels (MCLs) for two per- and polyfluoroalkyl substances (PFAS), PFOA and PFOS, at 4 parts per trillion (ppt), which is close to the level at which they can be reliably measured. Because, based on the limited testing conducted so far, PFAS is seemingly ubiquitous, this development will have a serious impact on water providers across the nation as they are required to test for, monitor, and remove these contaminants if they exceed the proposed MCLs.
We have yet to see a contaminant with such a combination of dangerous attributes as PFAS: Exposure at very low levels has been scientifically proven to be dangerous; environmental contamination is incredibly widespread, as PFAS chemicals have been used in so many different products for decades; and they do not break down naturally, earning the nickname “forever chemicals.” This gives PFAS the potential to be the most expensive environmental catastrophe in history.
Unless the manufacturers responsible for this pollution are held accountable, utilities’ ratepayers are likely to be the ones to bear the burden of billions of dollars needed to treat PFAS-contaminated water. SL Environmental Law Group (SL) is part of a legal team that has a successful track record of holding these polluters accountable and has gathered ample evidence that the manufacturers have been aware, for decades, of just how dangerous PFAS is.
As partner at SL, I represent more than 100 water providers in a multidistrict litigation (MDL) over PFAS exposure that has already grown to include more than 2,000 plaintiffs, and I anticipate that many more water providers will be joining this MDL in response to the EPA’s proposed MCLs. After the MCLs take effect, systems that exceed these levels will either need to take the contaminated sources out of service and get water from elsewhere or implement treatment solutions, both of which usually come at a great expense. As a result, these water providers should be motivated to pursue litigation against the responsible manufacturers in an attempt to recover these response costs.
With the first water provider case in the MDL set to go to trial in June, here are some questions for utilities to consider about the MDL process and how to get involved.
How does multidistrict litigation work in the context of PFAS lawsuits?
- An MDL is a consolidation of many lawsuits from around the country involving similar claims by different plaintiffs against the same defendants. The whole purpose of the MDL is to consolidate the beginning stages of litigation while reserving each plaintiff’s right to take its own case to trial, with lawyers of its own choosing. Although MDLs often result in what are called “global settlements” of the claims brought by most or all of the plaintiffs, it’s always up to each individual plaintiff whether to enter into a settlement. If the plaintiff is not happy with what’s being offered, it will have the chance to take its case out of the MDL, to federal court in its home state, and bring the case to trial there.
- As many municipalities and other water utilities across the U.S. filed lawsuits claiming that their water supplies have been contaminated with PFAS from aqueous film-forming foam (AFFF), either alone or in combination with other PFAS-containing products, they have had their cases grouped together before the same court in an MDL. The MDL was formed in December 2018 and is being heard in the U.S. District Court for the District of South Carolina. There are four categories of plaintiffs: water providers, property owners, personal injury plaintiffs, and the sovereigns (states, territories, and tribes). The water provider cases are one subset of approximately 2,500-plus cases pending in the MDL, but the court has selected the water provider cases to go first.
While the costs for cleaning up PFAS can be high, taking legal action doesn’t have to cost money up front.
Why is this necessary and helpful for utilities?
An MDL generally has a lot of advantages:
- If early cases in the MDL are resolved in favor of the plaintiffs, it often results in a domino effect of settlements for the remaining cases, which can be resolved without requiring lengthy discovery and pretrial litigation processes. In fact, water providers that file in the MDL now are not subject to depositions or other burdensome discovery demands, but need only to complete a brief “fact sheet” that summarizes their PFAS impacts. Typically, the presiding judge tries to steer the parties toward an agreeable resolution with a national settlement. Unlike a class action settlement, an MDL settlement is not binding on any party without its agreement to participate; if a case is not settled during an MDL, it is sent back to the plaintiff’s home court for trial.
- Of the water systems involved in the MDL, three bellwethers were chosen as test cases. Bellwether trials are used to work through common legal and factual issues that apply to the majority of the other similarly situated cases. If the test cases receive favorable results, the larger pool of plaintiffs can proceed more efficiently, often creating a domino effect of settlements or court judgments.
- Given the progress that has already been made, this MDL may provide water providers their best chance of recovering the costs of PFAS cleanup, and doing so quickly. There is still time to file a claim and join this MDL. It is a streamlined legal process, and if water providers choose a law firm that works on contingency, fees are only paid if their case receives a successful outcome.
The public’s understanding of the dangers and prevalence of PFAS is expanding as the mainstream media continues to ramp up coverage. Organizations suing these polluters are demonstrating to the public a responsible approach for covering the costs associated with the cleanup rather than asking their ratepayers to foot the bill.
What does it mean for the utility’s customers?
If the water systems are able to recover the cleanup costs through litigation, they will not be forced to raise their rates to build and run the water treatment plants. As a result, their ratepayers (i.e., the public) won’t have to shoulder the burden caused by the PFAS polluters.
How are liability and the share of culpability determined?
Almost all PFAS compounds entered the environment due to the actions of a small group of manufacturers, led by 3M and DuPont. In fact, 3M was the only manufacturer of PFOS in the United States and the principal manufacturer of PFOA as well (until DuPont began making PFOA in the early 2000s). Though these manufacturers supplied PFAS compounds to other smaller manufacturers that incorporated them into other products, many of them did so without knowing the risks of releasing PFAS into the environment. As a result, 3M and DuPont have been named as the defendants in virtually all lawsuits over PFAS contamination filed by water suppliers, which have not typically named local businesses that used or released PFAS.
How can utilities get involved in multidistrict litigation, what would be required of them, and are there specific timelines to adhere to?
- Additional plaintiffs can still join the MDL, which is likely one of the faster routes for a utility to try to obtain compensation if it has been impacted by PFAS from AFFF. Proceedings in the MDL have been underway for water providers for three years, so plaintiffs who join now effectively get the benefit of that earlier work and face a shorter time until potential resolution of their cases.
- While the costs for cleaning up PFAS can be high, taking legal action doesn’t have to cost money up front. Some law firms, including SL Environmental Law Group, work on a contingency basis — meaning that the firms advance the costs of litigation and are paid only if there is a successful outcome.
- In order to file a lawsuit as part of the AFFF MDL, water systems should hire a law firm experienced in handling these kinds of cases, which will be able to draft a complaint to get the lawsuit filed. Because just a small group of manufacturers are responsible for PFAS, a lengthy investigation is typically not necessary before filing the case.
- The statute of limitations is a time limit that applies to every legal claim. Outside of special circumstances, claims brought after the statute of limitations has run out cannot be brought to court, no matter how valid or valuable they are. The time to bring a lawsuit varies from state to state, but can be as short as two years, and what triggers the clock can also vary from state to state. Water providers that have detected PFAS in their supplies, at any level, should consult with experienced legal counsel at the first opportunity to evaluate the potential impact of the statute of limitations on their claims.
- Better yet, water providers can simply file a claim promptly to avoid or at least minimize any statute of limitations problems — even if their PFAS detections are below the MCL and they do not anticipate any remediation costs. This protects the system in the event that the MCLs for PFAS change (as they are likely to do, following the EPA’s recent announcement of new draft MCLs for several PFAS compounds) or the levels of PFAS in the system’s supplies increase.
About The Author
Ken Sansone is a partner at SL Environmental Law Group PC, where he exclusively represents water suppliers and other public agencies in contamination lawsuits, including claims over PFAS, 1,2,3-trichloropropane (TCP), and perchlorate. Prior to joining SL, Ken was assistant attorney general for New Hampshire. He has more than 20 years of experience handling complex civil and criminal cases in federal and state trial and appellate courts. He received his law degree from New York University and his undergraduate degree, magna cum laude, from Duke University.