News & Events

Which Came First, the Standard or the Suit?

This article was originally posted in the April 2020 issue of the IADC Toxic and Hazardous Substances Litigation Committee Newsletter.

Introduction

Lawsuits claiming damages from the class of chemicals known as per- and poly-fluorinated alkyl substances (“PFAS”), just as the substances themselves, are everywhere. Many of these suits, filed by states, municipalities, and individuals, target the primary chemical producers or the second-line manufacturers that utilized PFAS-containing materials in their products, and claim that exposure has put them at higher risk for illness or caused environmental damage. For many years PFAS chemicals were considered safe and effective for firefighting, stain-proofing, and many other applications. Even though now portrayed as a certain and significant health hazard by PFAS plaintiffs, the reality is that science has not yet determined how much or how often exposure to PFAS may cause negative impacts to human health and the environment and precisely what those impacts might be.

Amid this uncertainty, the United States Environmental Protection Agency (“EPA”) in 2016 issued a non-regulatory Health Advisory Level of a combined 70 parts per trillion (“ppt”) for perflourooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”) for drinking water.1 PFOA and PFOS are two of the most-studied among the thousands of different PFAS that exist. Many states followed by issuing their own versions of standards and non-regulatory guidelines for various types of PFAS. This article will explore how such federal and state-issued PFAS advisories and standards have been treated by courts and may affect the ongoing PFAS litigation.

To read the article in its entirety, click here.