Chemical, Industry Groups File Lawsuit to Block EPA Rule Limiting Toxic PFAS Water Contamination

Earlier this year, the U.S. Environmental Protection Agency (EPA) announced new new rules that establish legally enforceable drinking water limits for per- and polyfluoroalkyl substances (PFAS), which are toxic chemicals that have been deemed a threat to human health. However, two industry lobbying groups are now pursuing a lawsuit against the agency, seeking to block the new requirements.

The National Association of Manufacturers and the American Chemistry Council filed a complaint (PDF) against the EPA in the U.S. Court of Appeals for the D.C. Circuit on June 10, claiming the regulators have overstepped their authority, and that the new limits are an abuse of the EPA’s discretion.

PFAS include a group of more than 9,000 man-made substances, which are widely used to resist grease, oil and water. However, they are known to persist in the environment and build up in the human body, and researchers have identified a myriad of adverse health effects linked to the chemicals, including testicular cancer, kidney cancer, ulcerative colitis and other side effects.

Most of the PFAS health concerns have stemmed from water contamination problems caused by the large volumes of the chemicals in aqueous film-forming foam (AFFF), which have been used by the military and firefighters for decades to fight fuel-based fires. During training and response exercises, these PFAS chemicals have been dumped into the environment and local water supplies, particularly around military bases, airports and firefighter training locations, causing many communities to have dangerous levels of the chemicals in their drinking water.

3M Company, DuPont, Chemguard, Inc., Tyco Fire Products and other manufacturers of chemicals and fire safety products now face thousands of PFAS water contamination lawsuits brought by local water providers and individuals diagnosed with various types of cancer. The companies also face hundreds of firefighter cancer lawsuits over exposure to AFFF, and evidence uncovered during litigation has further heightened concerns about the long-term risks associated with use of the chemicals.

The new EPA rule limiting PFAS in driking water was announced in April, setting enforceable limits for five different types of the toxic chemicals: perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), perfluorononanoic acid (PFNA), perfluorohexanesulfonic acid (PFHxS), and C3 Dimer Acid (HFPO-DA); also known as GenX, as well as any combination of two or more of these chemicals. The new rule sets a Maximum Containment Level for PFOA and PFOS at 4 parts per trillion, and 10 parts per trillion for PFNA, PFHxS and GenX chemicals.

The EPA estimates that the new limits will need to be addressed by between 6% and 10% of the U.S.’s 66,000 public drinking water systems. All such systems will have three years to complete initial monitoring and must inform the public of the levels of PFAS detected. When PFAS are detected above the maximum containment levels, the system will have five years to reduce those levels to meet EPA standards.

This final rule was announced a day after the EPA released interim guidance on how to destroy and dispose of certain PFAS chemicals.

In addition, earlier this year the U.S. Food and Drug Administration announced a ban on PFAS chemicals in U.S. food packaging. The agency indicates that, as of this point, PFAS food packaging is no longer being sold on the U.S. market.

Lawsuit Seeks to Block PFAS Drinking Water Limits

The industry groups, whose members face potentially strict enforcement measures on pollutants that have contaminated a significant portion of the U.S. water supply, say the EPA’s efforts to protect the public from PFAS exceed the agency’s authority under the Safe Drinking Water Act. They are asking the appeals court to vacate the final rule.

The lawsuit claims the rule is “arbitrary, capricious, and an abuse of discretion; and it was promulgated without observance of procedures required by law.” The complaint indicates the industry groups will further explain their arguments in future briefings to the court.

A similar complaint (PDF) was filed just days before on June 7 by the American Water Works Association and the Association of Metropolitan Water Agencies in the same court.

“Petitioners are seriously concerned about the impact of this rule on water affordability, particularly for households that struggle to pay for essential needs,” the groups, who represent municipal water utilities nationwide, said in their lawsuit. “EPA has significantly underestimated the costs of this rule and the adverse impact that it will have on individual water users.”

However, the EPA has already indicated that it will allocate $1 billion through the Bipartisan Infrastructure Law to help testing and treatment of PFAS in public water systems. That is in addition to another $9 billion already set aside in the Infrastructure Law to combat PFAS contamination, and another $12 billion earmarked for general drinking water improvements.

June 2024 PFAS Exposure Lawsuit Update

The industry challenges come as thousands of the PFAS exposure lawsuits are currently centralized before U.S. District Judge Richard M. Gergel in the District of South Carolina, given common questions of fact and law presented. Enforceable PFAS limits could make polluters and water systems even more liable to such lawsuits in the future.

To help the parties gauge how juries may respond to certain evidence and testimony that will be repeated throughout the remaining lawsuits, Judge Gergel issued a case management order last year, which directed the parties to prepare a group of 28 PFAS injury claims to serve as a bellwether pool, which will be prepared for a series of early trial dates.

The initial bellwether trials will focus on plaintiffs who say they were exposed to PFAS through drinking contaminated water, as opposed to direct exposure claims brought by firefighters.

The personal injury bellwether claims will include eight kidney cancer claims, eight testicular cancer claims, eight thyroid disease claims and four ulcerative colitis claims involving individuals exposed to contaminated water near Peterson Air Force Base, Colorado Springs Municipal Airport, the Willow Grove Naval Air Station Joint Reserve Base and the Naval Air Warfare Center in Warminster.

While the outcome of these early bellwether trials will not have any binding impact on other claims, it is expected that the amount of any PFAS exposure lawsuit payout awarded by juries may influence future firefighter cancer settlement negotiations to resolve the litigation.