Understanding PFAS Litigation: Costs, Accountability, Course of Action

As governmental regulations regarding PFAS contamination evolve, it is crucial to understand the implications, especially when it comes to the financial burden of cleanup.

PFAS has been used in products for decades, and as a result, the cost and effort involved in the treatment of water contaminated by PFAS can place a significant strain on water utilities.

Many water industry associations, including the American Water Works Association and the Water Environment Federation, do not think that water utilities should be left with the cleanup bill. By taking legal action, water providers can shift the fiduciary responsibility for testing and treatment to the manufacturers of PFAS.

We sat down with Michael DiGiannantonio, an experienced environmental lawyer at SL Environmental Law Group, who focuses exclusively on representing public entities and water systems in water contamination litigation. He answers some commonly asked questions and offers his opinion on how to handle PFAS contamination.

What is the current status of PFAS litigation?

‍DiGiannantonio: There is currently a large body of ongoing litigation surrounding PFAS contamination and the costs of cleanup. A multidistrict litigation (MDL) bellwether case regarding aqueous film forming foam (AFFF) includes hundreds of lawsuits against chemical manufacturers and other companies that have contributed to PFAS contamination in the environment. This case could hold companies that manufactured and used PFAS in their products liable for their role in contaminating the environment. 

More stringent regulation also means more frequent testing and increased awareness of how pervasive and toxic PFAS is. As states implement maximum contaminant levels (MCLs) that require water systems to sample for PFAS in their supplies, more water providers are discovering PFAS in concentrations above the regulatory limits. Seeing as cleanup can be expensive and time-consuming, more and more water providers have been looking for ways to fund such costs. Suing the manufacturers responsible for the water contamination has proven an effective way to do so.  

All this to say, there is a lot more public awareness of the issue and it is becoming more common to obtain financial compensation for PFAS contamination.

What are the potential costs of PFAS cleanup?

‍DiGiannantonio: PFAS cleanup includes removing contaminated soil and treating contaminated water, a time-consuming process that involves the continual operation of treatment plants and can take years. It also involves monitoring and managing PFAS levels in the environment in the future. The resources necessary to conduct these operations can be expensive, especially in areas where PFAS contamination has a long history and pollution is widespread.

How can water providers recover the costs of PFAS cleanup?

‍DiGiannantonio: Water providers can recover the costs of PFAS cleanup by suing the companies responsible for PFAS production and use. This includes chemical manufacturers, industrial companies, and even government entities that have used PFAS-containing products. By filing a lawsuit, water providers can seek compensation for the costs of cleanup and mitigation, and hold these companies accountable for their role in contaminating the environment. For water providers, this is the most responsible course of action.

How can a lawyer help with PFAS litigation?

‍DiGiannantonio: An experienced and specialized environmental lawyer can help water providers navigate the complex legal issues surrounding PFAS contamination and recovery of cleanup costs. This includes conducting a thorough investigation of the sources of PFAS contamination, working with experts to quantify the costs of cleanup, and representing water providers in negotiations and litigation to recover the costs of PFAS cleanup. With the help of a lawyer, water providers can pursue a successful resolution to the PFAS contamination issue and secure the resources they need to protect public health and the environment.

Is there a statute of limitations by which an issue can or should be reported?

‍DiGiannantonio: Great question. The statute of limitations for reporting PFAS contamination and seeking legal action can vary depending on the jurisdiction and circumstances of the case. In some states, the statute of limitations for environmental contamination cases may be as short as one or two years from the time the contamination was discovered. In other cases, the statute of limitations may be longer, but it is important to consult with an environmental lawyer as soon as possible if you’re considering taking legal action.

How does the public normally react to these lawsuits?

‍DiGiannantonio: Sometimes water providers express concern that filing a lawsuit will raise a red flag about contamination issues and cause a public backlash. However, we’ve seen the opposite — often, the public agrees that those who polluted the water should be the ones who pay to clean it up. In most cases, when contamination levels exceed an MCL and the source of that contamination is known, the public wants to see action.

How long does it take to receive a settlement or win a trial in a water contamination case?

‍DiGiannantonio: It depends, but thanks to the experience of our team, the timeline for SL clients is usually accelerated. In certain cases we’ve been able to get settlements in as little as 18 months. Following the MDL bellwether cases in South Carolina this year, both water suppliers and the defendants will get an idea of what will happen when juries hear these cases, which may help both sides resolve the remaining claims. That will be an important point on the journey of the resolution of PFAS cases.

What are the legal costs?

‍DiGiannantonio: This is a good question to ask when evaluating law firms. At SL Environmental Law Group, we handle cases on a contingency fee basis, which means there are no upfront costs. We advance all of our clients’ litigation costs, including filing fees, cost of electronic document processing, expert witness consultation, and any other legal costs necessary to get to a settlement or verdict. The costs are then recouped out of the settlement or verdict and only if the outcome is successful for our client. Some firms will charge hourly, which can be costly, and not all firms will have extensive experience in contamination. These cases involve complicated legal, factual, and scientific issues that can only be handled by specialized environmental lawyers. 

Are there other legal options? 

‍DiGiannantonio: When you’re dealing with something like PFAS, where water pollution is easily traceable back to the manufacturers, the best legal option available is a lawsuit. Most related government funding is for expenses like preliminary engineering, site evaluation, and construction of treatment plants, but not for the long-term expenses of operating those plants, which is where the biggest costs will be.

Questions?