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(Editor's Note: 3E is expanding news coverage to provide customers with insights into topics that enable a safer, more sustainable world by protecting people, safeguarding products, and helping businesses grow. Q&A features our reporters' exclusive 1:1 interviews with lawmakers and regulatory and industry influencers.)
Recent legislation introduced in the U.S. House of Representatives would create new guidelines and analytical reference standards for classifying per- and polyfluoroalkyl substances (PFAS) and the health risks of PFAS exposure in air and water.
U.S. Rep. Debbie Dingell (D-MI) introduced H.R. 6805, the PFAS Action Act of 2023, on 14 December 2023. The bill would require the administrator of the U.S. Environmental Protection Agency (EPA) to designate per- and polyfluoroalkyl substances as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.
To acquire deeper insights into how upcoming legislation could affect PFAS litigation and the regulatory trends in 2024 and beyond, 3E reached out to Texas-based attorney Collen A. Clark. He has written extensively about PFAS litigation and the implications of government regulations on PFAS-related lawsuits.
Clark is the founder of Schmidt & Clark, LLP, a law firm with a national scope and offices in Washington, D.C. His legal expertise includes toxic torts, product liability, construction and oil field litigation, toxic exposure, and transportation disasters involving commercial aviation and tractor-trailers. He is a member of the State Bar of Texas.
Here is a transcript of 3E’s 1:1 interview with Clark
*Collen-A-Clark, founder of Schmidt & Clark, LLP
3E: What implications would HR 6805 have for PFAS litigation, and what trends have you seen in your caseload so far this year?
Collen A. Clark: The implications of H.R. 6805 for PFAS litigation are significant, as it would create a clear legal framework for holding PFAS manufacturers and users liable for the widespread contamination and exposure that has been linked to serious health problems, such as cancer, thyroid disease, immune system disorders, and developmental defects.
It would also provide more resources and authority for the EPA to regulate and monitor PFAS and set enforceable standards for drinking water, air, and soil quality. As a result, it would help protect public health and the environment from further harm and provide more scientific data and evidence to support legal claims.
In my caseload, I have seen a steady increase in PFAS lawsuits filed by individuals, communities, and businesses affected by PFAS exposure. These lawsuits range from personal injury, wrongful death claims, and property damage and diminished value claims to consumer protection and product liability claims. The defendants include major chemical manufacturers, such as 3M and DuPont, and companies that use or dispose of PFAS, such as firefighting foam manufacturers, textile and carpet makers, food packaging producers, the military, and airport operators.
What do you expect to continue from 2023, and what do you expect to be different about the volume and/or nature of PFAS litigation, if anything?
I expect an increase in the number of personal injury claims, especially those involving cancer or other serious diseases linked to PFAS exposure. There will also be an expansion of the types of defendants targeted beyond the major PFAS producers to include other companies that use, distribute, or dispose of PFAS-containing products or materials.
Also, there will be a shift in the legal strategies and arguments used by plaintiffs and defendants in light of the new scientific evidence, regulatory actions, and legislative developments regarding PFAS.
Given your firm’s national scope, what distinctions in regulations have you noticed at the state level?
Some states, including California, Michigan, New Jersey, and Vermont, have taken a more proactive and aggressive approach to establishing their standards and limits for PFAS in drinking water, air, and soil and pursuing legal action against PFAS manufacturers and users. Other states, including Alabama, Mississippi, and Wyoming, have been more lenient and unwilling to regulate or litigate PFAS.
These distinctions create different opportunities and challenges for plaintiffs and defendants in PFAS lawsuits, depending on the jurisdiction and venue.
Are there any good data sources you would recommend for tracking state-by-state settlement amounts and case volume?
One of the data sources that I would recommend is The Environmental Working Group (EWG) PFAS Contamination Map. It shows the locations of PFAS contamination across the U.S. and the sources, levels, and types of PFAS detected. This map is also updated regularly and provides a comprehensive overview of the PFAS problem in the country.
Next is The PFAS Project Tracker, a database of PFAS-related research projects funded by federal agencies, state governments, and academic institutions. This tracker allows you to search and filter projects by topic, location, funding source, and status. It provides links to the project websites and publications.
The last one is The National Law Review’s PFAS topic page, which provides news and analysis of PFAS litigation, regulation, and legislation at the federal and state level. This page is updated daily and offers a curated selection of articles, opinions, and insights from legal experts and practitioners.
Do you see any state regulatory frameworks that could potentially influence future federal legislation?
Some state regulatory frameworks that I see that could potentially influence future federal legislation are those that take a more comprehensive and precautionary approach to PFAS, such as California's Safer Consumer Products Program, which identifies and prioritizes PFAS as chemicals of concern and requires manufacturers to find safer alternatives or justify continued use.
Another example is Vermont's Act 21, which prohibits the use of PFAS in food packaging, firefighting foam, carpets, and ski wax while requiring the state to develop a plan to address PFAS contamination.
These frameworks demonstrate the feasibility and importance of reducing PFAS exposure and its impact on human health and the environment.
Analysis
H.R. 6805 remains in committee, most recently under the aegis of the Committee on Transportation and Infrastructure’s Subcommittee on Water Resources and Environment. The Congressional Budget Office (CBO) has not yet published a cost estimate for the bill.
It has 20 cosponsors, including Republican Rep. Brian Fitzpatrick of Pennsylvania and Rep. Michael Lawler of New York, indicating bipartisan support.
Rep. Lizzie Fletcher (D-TX), Dingell’s Democratic colleague, also a cosponsor of the bill, has her own proposed bill H.R. 6808, or the PFAS Risk Communication Strategy Act, which was also introduced on 14 December 2023.
H.R. 6808 requires the EPA to develop a risk-communication strategy to inform the public about the potential hazards of PFAS. Its goal is to disseminate information about the risk of PFAS in products, land, air, and water and notify the public about PFAS exposure pathways and mitigation measures through outreach and educational resources.
California, Michigan, New Jersey, and Vermont have taken a more assertive approach to PFAS standards and are among a group of at least nine states that have sued the manufacturers of PFAS chemicals for threatening public health and the environment.
Meanwhile, 11 states, including California and Vermont, have enacted state bans on PFAS in food packaging. These regulations impact manufacturers, distributors, and retailers of consumer products across a broad spectrum of industries.
On the other hand, states like Alabama, Mississippi, and Wyoming have yet to adopt any laws or regulations with respect to PFAS in consumer products. Companies operating in these states face less regulatory pressure regarding using PFAS. However, they should still be aware of potential future liabilities, especially if federal regulations on PFAS become stricter.
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About the author: Stefan Modrich is a Washington, D.C.-based reporter for 3E. He covers the latest developments in environmental health and safety policy and regulation. Modrich previously wrote for S&P Global Market Intelligence, The Arizona Republic, and the Chicago Tribune. He is an alumnus of Arizona State University and the University of Zagreb.
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