Perfluoroalkyl and polyfluoroalkyl substances (PFAS) are chemicals used around the globe that have left a lasting impact on our planet. PFAS are used to make products resistant to heat, stains, water, and grease and enjoy widespread use across various industries. They prevent food from sticking to cookware; make clothes, furniture, and carpets stainproof; coat pizza boxes, microwave popcorn bags, eyeglasses, and tennis rackets; and act as a lubricating component for satellite parts, ski wax, and communications cables.1
Beyond their impact on daily life, PFAS chemicals are now impacting our legal system, including here in Michigan. Litigation involving PFAS has ballooned in recent years to such an extent that PFAS-related litigation could rival asbestos litigation in terms of its scope and scale. This article will provide practitioners with a basic understanding of PFAS, how they are regulated, and relevant PFAS litigation with a particular focus on Michigan-related issues.
INTRODUCTION TO PFAS
PFAS refers to a family of chemicals that were invented in the 1940s and entered mainstream production in the 1950s. Some estimates peg the number of chemicals in the PFAS family at more than 4,700, and that figure grows every year.2 Among the PFAS chemicals are the widely known perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). Though no longer manufactured in the United States, PFOA and PFOS — along with other PFAS — are still manufactured internationally and imported into the U.S. in consumer products.3 The defining characteristic of PFAS is the uniquely strong bond between its carbon and fluorine atoms. Consequently, PFAS never break down naturally in the environment, which is why they are called “forever chemicals.”
Because PFAS can be found essentially everywhere in the environment, people are exposed to them in a multitude of ways. Indeed, the prevalence of PFAS in foods and the environment makes complete elimination of exposure nearly impossible. And while every person is likely to be exposed to PFAS, numerous sites in Michigan have been identified as elevated sources of PFAS contamination. Historic landfills are one obvious source. Indeed, hundreds of Kent County residents sued Wolverine World Wide and 3M due to PFAS emanating from a Wolverine World Wide-owned landfill.
Aqueous film-forming foam (AFFF) — an active ingredient in firefighting foam used mainly on flammable liquids — is another primary source of PFAS in the environment.4 AFFF is used as a commercial solution in a variety of ways including fire suppression, fire training, and flammable vapor suppression at military installations and civilian facilities including airports, petroleum refineries, and chemical manufacturing plants.5 The PFAS in this foam does not break down after its use. Instead, it remains in the environment. Thus, it is no surprise that many Michigan airports are dealing with the aftereffects of PFAS contamination.6
The problem with PFAS being so prevalent in our environment is that exposure may lead to adverse health effects.7 Further research is required to gain a complete understanding, but studies have linked PFAS exposure to high cholesterol, low infant birth weights, immune system deficiencies, cancer, fertility problems, reduced fetal growth, and thyroid hormone disruption to name a few.8 PFOA and PFOS have also been linked to a number of diseases in animals.9
PFAS REGULATION
Each state regulates PFAS differently. Michigan was one of the first states to set cleanup criteria for certain types of PFAS. The criteria classify PFAS as a hazardous substance under Michigan cleanup laws.10 Consequently, if PFAS is present at high enough levels in different mediums of the environment (e.g., groundwater or soil), remedial obligations are imposed on the entities responsible for the contamination.
Michigan has created a multiagency task force — the Michigan PFAS Action Response Team (MPART) — intended to provide a comprehensive state government response to PFAS contamination.11 MPART’s goal was to “investigate sources and locations of PFAS and protect drinking water and public health.”12 Now a permanent governmental entity, MPART not only protects drinking water and public health, but protects other environmental resources, facilitates coordination among state agencies, creates clear standards to ensure accountability, and increases transparency.13
MPART’s impact on state regulation is growing. As a result of the MPART Science Advisory Panel, Michigan — not unlike other states14— has adopted maximum contaminant levels, setting forth the maximum amount of certain PFAS in drinking water. The Michigan Department of Environment, Great Lakes, and Energy is also working with wastewater treatment plants and manufacturers to ensure adequate treatment of wastewater containing PFAS prior to discharge into our state’s waters.15 In an effort to increase transparency and communication, MPART also established a Citizens’ Advisory Workgroup which includes representatives from PFAS-impacted communities.16
Federal oversight of PFAS is also increasing. Just a few months ago, the Biden administration announced a comprehensive plan to address PFAS contamination involving significant actions from many federal agencies.17 Among the broad goals of the multiagency effort are “help[ing] prevent PFAS from being released into the air, drinking systems, and food supply” and “expand[ing] cleanup efforts to remediate the impacts of these harmful pollutants.”18 As just one example, the Biden administration plan aims to classify certain types of PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which would impose cleanup obligations for contaminated sites throughout the country.
Congress has also attempted to address some of these issues through the introduction of the PFAS Action Act of 2021.19 In addition to requiring the Environmental Protection Agency to designate PFOA and PFOS as hazardous substances under CERCLA, the act would require the EPA to establish PFAS chemicals as toxic pollut ants under the Clean Water Act and set standards to limit discharge from industrial sources into U.S. waters.20 Finally, the law proposes incentives to address PFAS, such as grants to help community water systems treat contaminated water.21
Another proposed measure is the PFAS Filthy Fifty Act, which would require remediation of PFAS contamination at military sites nationwide.22 Changes are also being made to the laws surrounding AFFFs in firefighting foam. In 2019, Congress attempted to pass the National Defense Authorization Act, which intended to phase out AFFF use at all military sites by October 2024.23
Another source of federal regulation of PFAS is the Toxic Substances Control Act (TSCA). Under the TSCA, the EPA has the authority to “require reporting, record-keeping and testing requirements, and restrictions relating to chemical substances”24 and it is proposing reporting and record-keeping requirements for PFAS under the act.25 The new rule would allow the EPA to add 1,364 PFAS substances to its list26 and could impose significant reporting obligations on businesses using PFAS.
The EPA also recently released Preliminary Effluent Guidelines Program Plan 15, which intends to reduce PFAS contamination by regulating wastewater pollution in critical industries.27 These guidelines will lead to rules revising effluent limitations and create pretreatment standards for organic chemicals, plastics, and synthetic fibers to address discharges from facilities manufacturing PFAS.28
Both state and federal regulation of PFAS abounds. So too does litigation directed at the chemicals and the harm they cause.
ORIGINS OF PFAS LITIGATION
That a group of widely used toxic substances that live on almost indefinitely in the environment spawned expansive litigation will come as little surprise to those in the legal profession. What is more remarkable is that despite the existence of high-profile cases (one of which spawned a major motion picture), a sprawling multidistrict litigation, and numerous actions brought by state and local governments, PFAS litigation likely is in its infancy. Due in large part to the veil of secrecy that has surrounded the effects of the chemicals, they were not the subject of significant litigation until the last two decades with most cases filed only within the last several years. What follows is a summary of some of the more significant cases both nationwide and in Michigan.
The C8 litigation, as it is now known, was a series of cases including class and mass actions involving exposure to PFOA dumped by DuPont in Parkersburg, West Virginia. C8 is another name for PFOA, owing to its eight carbon atoms. As depicted in the movie “Dark Waters” and the documentary “The Devil We Know,” the C8 litigation was the product of Ohio attorney Rob Bilott, who represented a Parkersburg farmer whose cattle were dying. Bilott traced the livestock woes to the nearby landfill in which DuPont had dumped thousands of tons of PFOAs and began looking into the chemical, leading him to file a class action suit on behalf of more than 70,000 area residents which ultimately resulted in a unique settlement agreement in 2004.29 As part of the settlement, a panel of scientific experts was created to study potential connections between various ailments and the community’s PFOA exposure.30 Ultimately finding probable links between PFOA and six categories of disease, not only did the panel provide the foundation for a series of personal injury cases against DuPont that ultimately resolved for more than $670 million, it also sparked other PFAS litigation and increased the scientific community’s knowledge and the public’s awareness of the chemicals.31
In 2010, Minnesota attorney general Lori Swanson brought a sweeping action against 3M for cleanup costs and other damages imposed on the state. While the case is notable in that the state recovered more than $600 million through a 2018 settlement, it also led to the public disclosure of a large tranche of previously confidential documents detailing the various harms of PFAS and 3M’s knowledge thereof.32 These documents, including the remarkable protest resignation letter of a 3M environmental scientist, were damning and became widely disseminated. Their release set the stage for an explosion of PFAS litigation.
PFAS LITIGATION GOES NATIONWIDE
While numerous cases involving PFAS had been working their way through the courts, 2018 marked the beginning of a truly nationwide wave of litigation. 3M filed a motion for transfer before the Judicial Panel on Multidistrict Litigation seeking to have all PFAS litigation condensed into a single multidistrict litigation (MDL).33 The panel ultimately created an MDL, but only for those cases that involved the use of AFFF due to its ubiquity and the number of cases in which PFAS contamination was alleged to have been caused by the foam’s use.34 The MDL, which includes hundreds of actions by water districts, state and local governments, and private plaintiffs bringing both individual and class claims, remains pending in the U.S. District Court for the District of South Carolina.
ON THE HOME FRONT
The first Michigan PFAS cases involved contamination allegedly released from various locations in the Rockford area where Wolverine World Wide used or disposed of materials containing PFAS, namely 3M’s Scotchgard.35 The private wells of dozens of homes were contaminated with extremely high levels of PFAS and many homeowners filed or joined individual state court actions against Wolverine and eventually 3M.36 Several class actions were also brought in federal court and eventually consolidated into a single case. While a small number of individual claimants’ cases have been settled, most litigation remains ongoing with trials scheduled for the coming year.
In the southwest Michigan community of Parchment, near Kalamazoo, PFAS was detected in the municipal drinking water in 2018.37 The system served more than 3,000 people in Parchment and portions of Cooper Township; three residents brought a class action on behalf of all affected persons in the U.S. District Court for the Western District of Michigan. The case ultimately resulted in an $11.9 million settlement.38
In May 2019, the state of Michigan sought to hire outside counsel on a contingent fee basis to pursue damages for PFAS contamination within the state. After hiring three firms in January 2020, the state filed the first of several actions against numerous defendants for contaminating various state resources.39 To this point, the state’s efforts to keep its litigation outside of multidistrict litigation have been unsuccessful.40
It is not unlikely that readers of this article will be approached by potential clients who may be considering or facing the prospect of PFAS litigation in Michigan. In considering whether to refer or undertake such matters, there are several salient concerns of which many lawyers may be unaware.
As a preliminary threshold matter, whether a potential plaintiff possesses a viable claim for personal injury or property damage due to PFAS contamination hinges on an analysis that entails more than the standard statute of limitations considerations. State Bar members will be familiar with the standard three-year limitations period for personal injury or property damage. In 2018, the Michigan Supreme Court issued an opinion that purportedly reiterated a requirement to start the three-year clock at the time “the plaintiffs were harmed” regardless of whether they were aware of such harm or its extent.41 This approach, which rejects the discovery rule often applied to tolling analyses in other states, could on its own doom many nascent cases.42
Relief may be available, however, in the form of CERCLA (also known as the Superfund Act.)43 On its face, CERCLA establishes a discovery rule and minimum limitations period that preempt state limitations that expire sooner.44 It specifies that:
In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute.45
Courts have grappled with which, if any, elements of a CERCLA cleanup action must be present alongside personal injury or property damage claims in order to use the federally required commencement date (FRCD).46 In many cases involving PFAS contamination, particularly where any response costs have been incurred, the FRCD is sufficiently likely to apply to merit serious consideration by counsel. Because of the persistence of PFAS and the potential latency of related health effects, the FRCD application may be the single most important legal issue in any given case.
An earlier opinion from the same litigation in which the Michigan Supreme Court addressed limitations tolling, Henry v Dow, sets the stage for another key issue — the availability of medical monitoring. Many lawyers believe, and many litigants have argued, that the earlier opinion, Henry I, foreclosed the possibility of plaintiffs’ obtaining so-called medical monitoring funds or programs for surveilling the health of plaintiffs exposed to toxic substances. Others, including one of this article’s authors, have argued that Henry I does not foreclose medical monitoring as a form of relief but only as an independent cause of action. That view posits that as long as there is a viable cause of action including a presently existing injury to person or property, medical monitoring should be available as a form of relief. While at least one court faced with this argument has declined to strike requests for medical monitoring at the pleading stage,47 it does not appear that any court has decided the issue on the merits. This issue is of great significance because medical monitoring programs are costly to defendants and immensely important to people worried about their health and the health of their loved ones.
Among other issues to consider in PFAS litigation are limitations imposed by Michigan’s statutory product liability scheme and the state Supreme Court prohibition on awarding noneconomic damages for negligent destruction of property. For example, under Michigan law, a manufacturer cannot be held liable for a defective product unless “a practical and technically feasible alternative production practice was available that would have prevented the harm without significantly impairing the usefulness or desirability of the product to users and without creating equal or greater risk of harm to others.”48 An additional shield available to manufacturers against actions for failure to warn is MCL 600.2947(4), which provides that “a manufacturer or seller is not liable in a product liability action for failure to provide an adequate warning if the product is provided for use by a sophisticated user.” Separately, a plaintiff whose home and drinking water have been contaminated with a dangerous chemical would likely be offended to know that unless they possess a viable personal injury claim, “replacement or repair of the negligently destroyed property” is their sole measure of damages, as the Michigan Supreme Court has ruled out the possibility of noneconomic damages in such cases.49
CONCLUSION
Legal issues stemming from PFAS will continue to keep lawyers in the litigation and regulatory spheres busy for years to come. Like the chemicals themselves, their presence in the legal field may prove to be almost interminable. Lawyers whose practices may bring them in contact with such matters would be well served to stay abreast of recent developments, as such developments are nearly certain to be frequent and significant.