‘Forever chemicals’ were everywhere in 2023. Expect more litigation in 2024

3M Co

28/12/2023 11:00

By Clark Mindock
       Dec 28 (Reuters) - Lawsuits accusing major chemical
companies of polluting U.S. drinking water with toxic PFAS
chemicals led to over $11 billion in settlements in 2023, with
experts predicting that new federal regulations and a growing
awareness of the breadth of PFAS contamination in the U.S. will
spur more litigation and settlements in the year ahead.
    Dubbed "forever chemicals" because they do not easily break
down in the human body or environment, per- and polyfluoroalkyl
substances, or PFAS, are a group of roughly 15,000 known
chemicals used in hundreds of consumer and commercial products
including firefighting foams, non-stick pans, stain resistant
clothing and cosmetics. 
    The U.S. Environmental Protection Agency has taken several
steps in recent years to tighten regulations for PFAS, calling
the chemicals an “urgent public health and environmental issue.”
        
  
        WHY IT MATTERS
  
    Chemical companies, including 3M  MMM.N , Chemours  CC.N ,
Corteva  CTVA.N  and DuPont de Nemours  DD.N , have faced
thousands of lawsuits in recent years over alleged PFAS
contamination. 
    Many of the cases, which involve claims that PFAS in
firefighting foams sprayed at airports and firehouses across the
country contaminated water supplies, have been consolidated in
multidistrict litigation (MDL) in South Carolina federal court. 
        The litigation includes lawsuits brought by water
utilities seeking to make the companies pay to clean up PFAS
contamination and personal injury claims by individual
plaintiffs who allege that exposure to PFAS has led to health
issues, including cancer, hormonal dysfunction and ulcerative
colitis.
    A 3M spokesperson said PFAS can be safely made and used, and
noted the company plans to discontinue its production of PFAS by
2025. Chemours, DuPont and Corteva declined to comment on the
litigation.
    Other lawsuits include consumer class actions over
PFAS-containing products, lawsuits by states over environmental
damage to wildlife and waterways, and lawsuits seeking to force
companies to pay to clean up PFAS in waste that has seeped or
been dumped into groundwater and rivers from manufacturing and
industrial plants.
    In June, shortly before a bellwether test trial in the MDL
was set to kick off, 3M and water utilities announced they had
clinched a $10.3 billion settlement that would help pay to clean
up drinking water. A similar settlement involving DuPont,
Chemours and Corteva was reached that same month for $1.19
billion.
    U.S. District Judge Richard Gergel in Charleston, who is
overseeing the MDL, has warned the lawsuits could pose an
“existential threat” to companies facing PFAS claims. 
        Experts say potential liabilities from the litigation
could push defendants to settle to avoid massive verdicts or
seek bankruptcy protection. In May, Carrier Global subsidiary
Kidde-Fenwal Inc filed for bankruptcy citing the weight of its
PFAS liabilities.
        
  
        WHAT IT MEANS FOR 2024
  
        The EPA has said PFAS has been found in the environment
all over the world, and the Centers for Disease Control and
Prevention has found the chemicals may be in the blood of 97% of
Americans, so the possible number of plaintiffs could be huge.
    Legal experts predict more PFAS-related lawsuits to be filed
outside of the MDL in 2024, including more claims against
consumer brands whose products contain PFAS and more personal
injury claims.
    “The litigation story is just beginning,” said Kenneth
Rivlin, the head of Allen & Overy's environmental law group.
    Experts also expect key developments in the MDL in 2024. At
least one trial is scheduled in August, when water utilities
will make their case that companies that made firefighting foams
but did not settle in June are responsible for PFAS-related
cleanup costs.
    Meanwhile, the process for selecting bellwethers for
thousands of personal injury cases in the MDL is underway, and
the first trials for plaintiffs with kidney cancer, testicular
cancer, hypothyroidism and ulcerative colitis are expected to be
scheduled in 2024.
    Cases outside South Carolina may also be scheduled for
trial, including a lawsuit brought by a group of 100,000 North
Carolina residents claiming Chemours and others are responsible
for PFAS dumped into the Cape Fear River and a lawsuit brought
by homeowners in Maine who claim a local paper mill contaminated
their groundwater wells. 
    Experts are also watching for more potential settlements
between chemical firms and state attorneys general that claim
PFAS is damaging their rivers, wildlife and other natural
resources, after New Jersey and Ohio signed their own
settlements for $393 million and $110 million respectively in
2023. So far, more than two dozen state attorneys general have
filed PFAS lawsuits, 14 of which were filed in 2023.
    There's also been a growth in recent years in the number of
consumer class action lawsuits against companies that produce
clothing, personal hygiene products such as dental floss and
even food wrappers that contain PFAS and that litigation is
likely to continue ramping up, according to David Fusco, an
attorney at K&L Gates.
    The EPA has meanwhile indicated it is moving forward with
regulations in the new year that would set enforceable limits
for some PFAS in drinking water, and potentially designate some
PFAS as hazardous under the U.S. Superfund law, which
establishes liability and cost sharing to clean up polluted
sites.
    Lauren Brogdon, a partner at Haynes and Boone, said those
regulations "will almost undoubtedly spur litigation into 2024
and beyond."

 (Reporting by Clark Mindock)
 ((Clark.Mindock@thomsonreuters.com;))