Could PFAS Liability Issues Become ‘The Next Asbestos’ in Terms of Claims? 

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Perfluoroalkyl and polyfluoroalkyl substances, commonly referred to as PFAS or PFOS, have been a key ingredient in a special kind of firefighting foam – aqueous film –forming foam, or AFFF, that has been routinely used on military bases nationwide since the 1970s. It’s now 2021, and researchers are more aware of the fact that these same chemicals have become a primary source of cancer for military service members and their families that have had prolonged exposure.

Are PFAS ‘forever chemicals’ the next asbestos? 

Considered to be superior to other forms of insulation, inexpensive, abundant, lightweight, and strong, asbestos has been ubiquitous in buildings, homes, and consumer products; however, beginning in the 1970s, as the material was shown to cause severe pulmonary issues and cancer, a combination of tort liability and regulation curbed its use in the U.S. Thousands of Americans continue to die each year from conditions caused by previous exposure to asbestos.

Today, the general public has a more heightened awareness of environmental dangers, and prior exposure to PFAS in AFFF coupled with increased cancer rates for those exposed has instigated lawsuits against the companies who manufactured the product. Veterans and reservists who were exposed to perfluorooctanoic acid and other per- and polyfluoroalkyl substances, particularly military families who live on or near military bases, continue to come forward alleging harm.

PFAS-containing firefighting foams are a major source of groundwater contamination at airports and military bases where they were used in fire incidents, tests, and training exercises, resulting in serious, life-threatening health conditions for many of these service members and their families who lived with them on targeted bases. PFAS could rival asbestos in bottom-line health and environmental impacts; emerging litigation surrounding PFAS’s adverse health effects has been so rapid and human exposure to PFAS is so widespread that some see PFAS as the new asbestos.

These PFAS chemicals are a major concern for many water systems around the world where their attempt to maintain clean water has been compromised by the manufacturers of these chemicals.  However, many water systems have begun taking active steps in litigating against the manufacturers of these chemicals.

U.S. military sites that may be contaminated by PFAS grow exponential; the U.S. Department of Defense (DOD) updated inventory of its facilities that are undergoing assessment of PFAS use or potential release has increased from 401 in July 2018 to over 700 military sites on which fluorinated chemicals are or may be present, greatly endangering the health of the people who either work or are stationed there.

The regulatory background of PFAS 

In 2020, Congress has been pressuring the EPA to list these chemicals as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, also known as the Superfund law.

Despite the fact that other countries, like Australia, have switched to fluorine-free foams, our military has thus far refused to do so. This leaves our service members and military families outraged, feeling betrayed, and believing their only line of defense is to hold the companies responsible for the injuries caused by their products. Those affected by the PFAS in groundwater believe our government should:

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  • Extend PFAS testing to all military members and their families, including retirees;
  • Expand protections for a military firefighter to further limit their exposure to PFAS firefighting foam contaminants;
  • Establish a registry to notify military personnel and their families that they may have been exposed to PFAS chemicals;
  • Phase out the use of firefighting foam containing these toxic chemicals.

In the absence of a federal PFAS standard, fifteen states have established some type of standard and guideline for PFAS in soil and groundwater. For example, New York and New Jersey listed PFAS as hazardous substances under their regulatory regimes and set an MCL of 10 ppt in the case of New York and 13 ppt for PFOS and 14 ppt for PFOA in New Jersey.

On January 19, 2021, just one day prior to President Biden’s inauguration, the EPA introduces additional action items under its 2019 PFAS Action Plan which proposed a systematic approach to developing regulations for PFOA and PFOS chemicals in soil and groundwater. The new action is intended to address these emerging chemicals of concern and protect public health by providing PFAS manufacturers, producers, users, and discharges a blueprint of the compliance requirements that will dictate their operations within the coming years.

Litigation surrounding PFAS continues to unfold 

Allegedly, manufacturers who have added PFAS into firefighting foams for decades to help fight high-hazard flammable liquid fires, knew about the health risks of PFAs since the 1940s. Even with this knowledge, these companies still sold PFAS-based foams without disclosing the potential health and environmental impacts. Because of their negligence and failure to warn the public of the health risks of PFAS, firefighting foam manufacturers are now held liable for the injures caused.

While many cases are still pending, several high-value settlements with the companies on behalf of those affected as a result of PFAS releases, including:

  • $671 million settlement to resolve 3,550 personal injury claims in 2017;
  • $850 million settlement with the state of Minnesota in 2018;
  • $55 million settlement with the state of Michigan, the Michigan-based Wolverine World Wide, and two Grand Rapids-area townships in 2020;
  • $83 million settlement this year to resolve about 95 pending cases, as well as agreeing to a cost-sharing arrangement to address potential future PFAS liabilities, with annual contributions over eight years.

As these outcomes suggest, litigation against PFAS manufacturers will undoubtedly endure. PFAS continue to garner significant national attention, which will undoubtedly drive litigation risk for manufacturers in the year ahead and beyond.

The PFAS lawsuits are expected to continue to increase, with veterans and family members being diagnosed with cancers and other diseases after exposure to these toxic chemicals. The victim’s ability to get treatment for their injuries and assistance with their PFAS-related injury expenses can, unfortunately, be limited, which is why those diagnosed with a disease like cancer need financial assistance, and that is one reason why, currently, those whose health has been harmed by these dangerous chemicalsare filing claims for compensation.

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