PFAS Litigation: New Claims against Upstream Manufacturers

As we turn to 2025 and a new administration, there are a few areas of PFAS law worth watching in the short term, including the regulation of the chemicals in water and their treatment under the Comprehensive Environmental Response, Compensation, and Liability Act.

While the results of consumer products litigation surrounding PFAS have been uneven (see prior blog posts), a new type of claimant may be emerging based on a recent claim filed by a Georgia-based carpet manufacturer against three major upstream PFAS manufacturers.  The complaint alleges that the PFAS manufacturers concealed potential human health and environmental impacts of PFAS that were known to them, failed to inform the carpet manufacturers that their fluoropolymer products could degrade to other PFAS and did not advise that disposal of PFAS-containing wastewater required the use of specialized PFAS removal technologies.  The lawsuit seeks costs for property damage and to recoup potential PFAS removal and remediation costs incurred as a result of PFAS contamination lawsuits against the carpet manufacturer, as well as over $100 million in past costs.

Our series on the impact of the election on per- and polyfluoroalkyl substances (PFAS) policy takes us to the Senate, where Senator Shelley Moore Capito (R-WV) indicated in a hearing that the Senate Committee on Environment and Public Works (which she will chair) will continue to pursue PFAS.

Much will be written about the impact of the election on per- and polyfluoroalkyl substances (PFAS) policy over the coming months (or even years), and we imagine many of our updates over that time will analyze this, as well. These impacts may present in the form of continued budgetary and technical challenges for the Environmental Protection Agency (EPA) such as those that led to a delay in implementation of the PFAS Reporting Rule under the Toxic Substances Control Act (TSCA). That said, given that PFAS is largely seen as a bipartisan issue (as evinced by the first Trump administration’s introduction of a PFAS Action Plan in 2019), we do not expect wholesale changes to existing PFAS rules, though the second Trump administration may ease regulatory thresholds and reporting deadlines relating to PFAS. As a consequence of federal developments, we expect state activity to remain steady, if not increase, in response to concerns that federal implementation may lessen. Unfortunately, this may mean the patchwork of state regulations and laws around PFAS may grow, imposing significant compliance burdens on regulated entities (which, ironically, may lead the federal government to increase its involvement).

On May 8, 2024, the U.S. Environmental Protection Agency (EPA) published its final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

In February 2024, the U.S. Environmental Protection Agency (EPA) proposed two rules under the Resource Conservation and Recovery Act (RCRA). The first modifies RCRA’s definition of “hazardous waste” as it applies to cleanups at permitted hazardous waste facilities and the second adds nine per- and polyfluoroalkyl substances (PFAS) to the RCRA list of “hazardous constituents.”