Plaintiffs across the country have filed suit seeking relief for their exposure to per– and polyfluoroalkyl substances (“PFAS”), a group of man-made chemicals that the plaintiffs hope to link to a variety of adverse health effects, including cancer. While the health effects attributable to these chemicals are under study by state and federal regulators, decisionmakers have been slow to implement rules and regulations that provide those who have been exposed to these chemicals with a clear path for recovery. While regulators grapple with these emerging contaminants, courts are weighing in on whether those injured by exposure to PFAS are entitled to relief under the existing regulatory landscape.
In Giovanni v. United States Department of the Navy, No. 16-04873, 2020 WL 224683 (E.D. Pa. Jan.15, 2020), the District Court for the Eastern District of Pennsylvania became one of the most recent courts to address the PFAS regulatory gap. In Giovanni, two families discovered that their private wells were contaminated with two types of PFAS: perfluorooctanoic sulfonate (“PFOS”) and perfluorooctanoic acid (“PFOA”). After discovering that the contamination was the result of the Navy’s disposal of the chemicals at two of its nearby facilities, the families brought suit under Pennsylvania’s Hazardous Site Cleanup Act (“HSCA”), requesting costs for medical monitoring and an order directing the Navy to perform a health assessment and health effects study.
Initially, the district court dismissed the families’ request for a government-led health assessment and health effect study by finding that the requested relief was barred from review under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). On January 15, 2020, the district court also dismissed the families’ request for medical monitoring. Here, the court found that the HSCA did not regulate either PFOS or PFOA. The district court acknowledged that, although state regulators were in the process of considering regulations to provide relief for exposure to these chemicals, the court was required “to decide cases based on what the law is, not what the law may be at some point in the future.”
As recognized in Giovanni, state and federal regulators are actively considering how to define and regulate different PFAS. In 2019, the Environmental Protection Agency (“EPA”) released a multi-pronged action plan to delineate its goals for addressing and regulating PFAS. The action plan details the EPA’s plans to regulate PFAS across a variety of the agency’s statutory programs including, among others, the Safe Drinking Water Act, CERCLA, and the Clean Water Act. (A summary of the action plan can be viewed here.) Following the EPA’s lead, many states are also considering how to address PFAS. While regulators continue to assess how to handle these emerging contaminants, litigation continues in courts across the country as plaintiffs seek relief under the existing regulatory scheme.
As state and federal regulation of these emerging contaminants continues to evolve, we will continue to provide updates on how these claims are developing in the court system.