In the recently-released film, Dark Waters, Mark Ruffalo stars as the real-life environmental attorney Robert Bilott of Taft Stettinius & Hollister. The movie depicts Bilott waiting several painstaking years for the release of a science panel study—assembled via settlement agreement with DuPont—to confirm the human health effects of perfluorooctanoic acid (PFOA). Absent from the film, however, is Bilott's involvement in per- and polyfluoroalkyl substances (PFAS) litigation in New Jersey during that waiting period. Bilott, along with the New Jersey environmental firm Lieberman & Blecher, filed suit in federal court in 2006 on behalf of a class of plaintiffs who drank water contaminated with PFAS emitted from the DuPont Chambers Works site in Deepwater. Rowe v. E.I. DuPont de Nemours & Co., No. 1:06-cv-01810 (D.N.J.). In the Rowe case, the class was certified based on a private nuisance claim, and the plaintiffs obtained clean water as part of a settlement. The $8.3 million settlement was approved in 2011.

In addition to the successful resolution of the Rowe litigation, "The Chambers Works case was also a vehicle for continuing discovery against DuPont, allowing me to learn about DuPont's actions in New Jersey," recalls Bilott. In his new book, "Exposure: Poisoned Water, Corporate Greed, and One Lawyer's Twenty-Year Battle Against DuPont" (Atria Books 2019), Bilott describes the information obtained through the Chambers Works case as "absolutely essential" to the bellwether personal injury cases tried in the Southern District of Ohio, the costly verdicts of which triggered the $671 million settlement depicted in Dark Waters.

Bilott also credits the Chambers Works case with "spurring New Jersey Department of Environmental Protection to investigate the toxicity of PFAS, resulting in New Jersey being a leader among states in PFAS regulation." During the Chambers Works litigation, the NJDEP issued a preliminary drinking water guidance level for PFOA of 40 parts per trillion (ppt). In September 2018, NJDEP adopted an enforceable maximum contaminant level (MCL) for a PFAS called perfluorononanoic acid (PFNA) of 13 ppt. MCLs are used to limit contaminants in drinking water, and must be met by water purveyors pursuant to the federal Safe Drinking Water Act, 42 U.S.C. §300f et seq. In April 2019, NJDEP proposed an MCL of 14 ppt for PFOA and an MCL of 13 ppt for perfluorooctane sulfonate (PFOS), both of which are currently pending.

The statistics are staggering. The Centers for Disease Control and Prevention's National Health and Nutrition Examination Survey found PFAS in more than 98% of the general population's blood. Antonia M. Calafat, et al., Polyfluoroalkyl Chemicals in the U.S. Population: Data from the National Health and Nutrition Examination Survey (NHANES) 2003-2004 and Comparisons with NHANES 1999-2000, 115 Envt'l Health Perspectives 1596 (2007). The Environmental Working Group, a nonprofit, non-partisan organization dedicated to protecting human health and the environment, estimates that up to 110 million people in the United States could have PFAS in their water at levels of 2.5 ppt or higher. David Andrews, Report: Up to 110 Million Americans Could Have PFAS-Contaminated Drinking Water, Environmental Working Group (May 22, 2018), https://www.ewg.org/research/report-110-million-americans-could-have-pfas-contaminated-drinking-water.

Groundwater contamination is typically caused by the manufacture of PFAS, as in the New Jersey Chambers Works case, the use of PFAS in industrial processes, or the use of PFAS in aqueous film forming foam (AFFF), a special firefighting foam used to control petroleum-fueled blazes. An enforceable MCL provides a basis for a water purveyor's claim against manufacturers, users, and dischargers of PFAS. The cost of treating drinking water is high, and in many cases, removal of PFAS from a drinking water source requires the installation and maintenance of new equipment. Water purveyors unwilling to pass the cost of treatment onto their ratepayers may choose to file suit using theories of negligence, trespass, or products liability.

On March 13, 2019, NJDEP adopted interim specific ground water quality criteria for PFOA and PFOS, both being 10 ppt. These are health-based criteria, formulated without consideration of analytical feasibility, treatability, or cost. These criteria set the minimum remediation standards for Class II-A groundwater, and are also used to set effluent limits for discharges to groundwater. Persons responsible for conducting remediation under New Jersey cleanup laws are now obligated to meet these standards in remediation. PFAS contamination at cleanup sites will result in additional parties being deemed "responsible" for remediation, those parties being the manufacturers and users of PFAS. Prior owners who discharged PFAS on a site may also now be liable for remediation of those discharges and may want to consider filing suit against the manufacturers of these chemicals or seek insurance coverage for third-party damage.

A common source of groundwater contamination is the use of AFFF on military bases. On Dec. 20, 2019, the federal Environmental Protection Agency (EPA) adopted a groundwater preliminary remediation goal for PFOA and PFOS of 70 ppt. U.S. Envt'l Prot. Agency, OLEM Directive No. 9283.1-47, Interim Recommendations to Address Groundwater Contaminated with Perfluorooctanoic Acid and Perfluorooctanesulfonate (Dec. 19, 2019). This guidance applies to federal facility cleanup programs occurring on military bases, as well as cleanups required by federal law in states or tribal lands without applicable MCLs. According to the EPA's PFAS Action Plan, it is currently in the process of determining whether an MCL for PFOA of PFOS is needed. EPA also plans on proposing to designate PFOA and PFOS as "hazardous substances," which would trigger regulation of the substances under numerous federal environmental statutes, as well as liability under federal cleanup provisions.

As property owners become increasingly aware of PFAS contamination, and as individuals exposed to PFAS learn of the health risks associated with exposure, liability will likely affect entire supply chains. As an example, in Michigan, extensive PFAS groundwater contamination occurred due to the decades-long operations of Wolverine World Wide, a shoe company that used 3M Company's Scotchgard product to make shoes waterproof and stain-resistant. In December 2018, in response to an enforcement action filed by the Michigan Department of Environmental Quality (MDEQ), Wolverine filed suit against 3M seeking indemnification and alleging fraudulent misrepresentation of the safety of Scotchgard, nuisance, products liability, cost recovery and contribution under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seq., and negligence. Michigan Dept. of Envtl. Quality v. Wolverine World Wide, No. 1:18-cv-00039 (W.D. Mich.). PFAS have been commonly used in textiles and clothing for decades, and even relatively small businesses may be vulnerable to liability.

Our food supply is also affected by PFAS contamination. 3M found various PFAS in a variety of foods and milk as far back as 2001. Letter from Robert A. Bilott to Timothy Begley, U.S. Food & Drug Ass'n (June 11, 2019) https://assets.documentcloud.org/documents/6151162/3M-Food-2001.pdf. Recently, the Food and Drug Administration ("FDA") began its own testing foods grown or produced in areas contaminated with PFAS, and also began testing for PFAS in the general food supply. Although detectable levels of PFAS were discovered in some of the foods, the FDA concluded that, in a majority of cases, "based on the best available current science, the FDA has no indication that these substances at the levels found in the limited sampling present a human health concern." However, in a Q&A document, the FDA acknowledges that "[t]he associated health effects for many of the different PFAS are unknown" and that it "does not currently have toxicity reference values for dietary exposure for PFAS other than PFOA and PFOS." Questions and Answers on Per and Polyfluoroalkyl Substances (PFAS) in Food, http://www.fda.gov/food/chemicals/questions-and-answers-and-polyfluoroalkyl-substances-pfas-food (last visited Jan. 2, 2020).

In New Mexico, a dairy farmer's wells were contaminated with PFAS from firefighting foam used at a nearby Air Force base. The FDA discovered PFAS in the cows' milk, and the New Mexico Department of Agriculture suspended the farmer's dairy license. As a result, the farmer, Art Schaap, has been forced to dump thousands of gallons of milk each day for over a year, and may need to euthanize all of his cows. Schaap has filed suit against the manufacturers of firefighting foam, including 3M, and also plans on filing suit against the Department of Defense. Schaap v. 3M Co., No. 2:2019-cv-01644 (D.S.C.).

Now that the toxicity, persistence, and bioaccumulative property of PFAS are becoming clear, it seems the massive legal impact of these "forever chemicals" is here to stay. Individuals and small businesses bearing the brunt of the effects of contamination will increasingly look to the courts and their insurance companies for relief. In New Jersey, while the Chambers Works case may have been the first of its kind, it certainly will not be the last.

Shari M. Blecher is a shareholder at Lieberman & Blecher in Princeton. Kacy C. Manahan is an associate at the firm. Lieberman & Blecher served as local counsel and part of the plaintiff's counsel team in the Chambers Works litigation and has represented water purveyors in litigations against oil companies that caused groundwater and drinking water contamination. In re: Methyl Tertiary Butyl Ether ("MBTE") Products Liability Litigation, No. 1:00-cv-01898 (S.D.N.Y.).