What are PFAS?

Per- and Polyfluoroalkyl Substances (PFAS), which include most prominently perfluorooctanoic acid (PFOA) and perfluorooctansulfonic acid (PFOS), among others, are a class of thousands of fluorinated chemicals manufactured and used in various industries around the globe since the mid-1900s. The unique ability of PFAS to repel both oil and water led to their application in many products, including items such as stain and water-repellent fabric, chemical-and oil-resistant coatings, food packaging materials, plastics, firefighting foam, industrial fume suppressants, solar panels, and others. The carbon-fluorine bond is the strongest in nature, making these compounds highly persistent and ubiquitous in the environment. Since the early 2000s, many long-chain PFAS chemicals, including PFOA and PFOS, have been phased out of production in the US, although “replacement” and lesser-studied “next generation” PFAS continue in use.

Because these substances are both highly soluble and persistent in the environment, environmental agencies, public interest organizations, and plaintiffs’ attorneys began raising questions over a decade ago about the environmental and public health impacts of PFAS. Evolving science, coupled with widespread detection in the environment and human blood serum, has caused a recent escalation in PFAS regulatory activity and litigation.

The effort to regulate PFAS at the federal level has been led by the Environmental Protection Agency (EPA). PFAS risk assessments have focused predominantly on contamination of drinking water sources, but there is still no legally enforceable federal maximum contamination level (MCL) for PFAS under the Safe Drinking Water Act. The timeline of effort on this front includes:

• 2016: EPA established a non-enforceable, non-regulatory health advisory for PFOA and PFOS of 70 parts per trillion.
• 2018-2019: EPA held a National PFAS Leadership Summit (May 2018), then unveiled its PFAS Action Plan (February 2019), which sets short- and long-term strategies for the regulation of PFAS.
• 2019-2020: EPA undertook measures pursuant to the PFAS Action Plan, including issuing groundwater guidance for cleanup of PFOA and PFOS contaminated sites under CERCLA, which incorporates 70 ppt as preliminary remediation goal (PRG) (December 2019); issuing preliminary determinations to regulate PFOA and PFOS in drinking water (February 2020); issuing a “significant new use rule” restricting the import or manufacture for any new use of certain PFAS under the Toxic Substances Control Act (TSCA) (June 2020); and publishing an interim strategy for addressing PFAS through National Pollutant Discharge Elimination System (NPDES) permits (November 2020).
• 2021: EPA released its PFAS Strategic Roadmap (October 2021), a comprehensive, whole-of-agency approach to addressing PFAS that established timelines to take specific actions to further research, restrict, and remediate PFAS. As part of this Roadmap, EPA proposed several landmark regulatory actions, including proposing PFOA and PFOS as hazardous substances under CERCLA, proposing MCLs and MCLGs for a number of PFAS, proposing to add PFAS to the list of lower thresholds for Chemicals of Special Concern under the Emergency Planning and Community Right to Know Act (EPCRA), proposing significant new use rules for PFAS designated as “inactive” on the TSCA Inventory, and proposing extensive reporting requirements for PFAS, including products containing PFAS, under TSCA Section 8(a)(7).

EPA is also using its existing legal authorities to pursue a broad range of PFAS enforcement actions.

Additional regulatory and enforcement actions at the federal level are anticipated; however, states continue to fill the regulatory void by setting limits of their own. To date, states including Michigan, New Jersey, New York, and Vermont enacted regulations to establish enforceable MCLs much more stringent than EPA’s health advisory. For instance, Michigan created some of the nation’s most comprehensive regulations limiting PFAS contamination in drinking water, setting drinking water standards as low as 6 ppt. Additionally, some states enacted disclosure and reporting requirements for certain products containing PFAS; some enacted legislation prohibiting or otherwise restricting the use of PFAS in firefighting foam, food packaging, and consumer products, such as cosmetics, rugs and carpets, textiles, children’s products, and ski wax; while still others (like Maine) passed sweeping bans on all product containing intentionally added PFAS. Further, states are adopting a broad definition of PFAS in their regulations to mean “any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.”

PFAS scrutiny has sparked a wave of both environmental and tort litigation across the United States. The majority of claims are asserted against PFAS manufacturers, but downstream industrial users of PFAS in their manufacturing processes or products are increasingly being sued by public and private plaintiffs. A multidistrict litigation pending in South Carolina federal court has consolidated thousands of cases against common defendants relating to environmental contamination, property damage, and personal injury allegedly resulting from industrial and municipal use of PFAS-containing fire suppressant foams (AFFF). Other broad classes of litigation include: (i) state litigation to recoup natural resources damages and costs associated with environmental remediation; (ii) claims by local water authorities to recover cleanup costs from manufacturers and premises owners; (iii) class actions based on public nuisance theories seeking property damages and medical monitoring; and (iv) individual personal injury actions. Recent activity suggests potential growth in PFAS consumer product litigation. At the core of the pursuit and defense of these claims is a constantly expanding body of epidemiological, toxicological, and environmental scientific literature.

Our PFAS Team and Experience

Hunton Andrews Kurth LLP’s PFAS practice is interdisciplinary, with experience in state and federal regulatory, litigation, and technical issues related to PFAS. Our team includes former agency lawyers, in-house counsel, engineers, and government officials. We represent clients in PFAS litigation and enforcement actions and advise on PFAS regulatory compliance and clean-up. We have presented to a range of industry groups on both niche and broad PFAS-related subject areas. Publications such as The American Lawyer, National Law Journal, Chambers USA, Legal 500 United States, US News Best Lawyers, and Global Investigations Review recognize our practice and lawyers for their results and approach to client service.

Our interdisciplinary team works collaboratively among itself, within our firm, with clients and their technical personnel, and with local counsel, to support client projects across multiple jurisdictions. We understand our clients’ business needs and we partner with in-house counsel to deliver pragmatic solutions to ever-changing regulatory and litigation matters. We serve as national or worldwide coordinating counsel for many clients, across jurisdictions, where actions taken in one matter or case may have significant consequences in another. We implement strategies to advance overall goals while striving to minimize risk.

Hunton’s PFAS team also monitors and understands the science behind PFAS. We have developed a team of qualified non-attorney experts across disciplines for assistance behind the scenes and in the courtroom and we actively track relevant scientific literature. We have in-house scientists, many with PhD’s, to aid in dissecting and evaluating the scientific underpinnings of costly environmental, health, and safety regulations, and to objectively present complex technological information and processes to support client positions regarding regulatory actions. Our familiarity with the technical aspects of PFAS, and the team’s technical background in chemistry, toxicology, engineering, and in-house risk management, allows us to thoroughly and efficiently support all aspects of a client’s efforts to manage this important issue. 

Our PFAS experience includes:

• Regulatory monitoring and advocacy. We are fluent in every phase of the regulatory process. The core of our regulatory work involves advocating for clients before administrative agencies during the rulemaking process. We assess proposals, draft comments, review scientific underpinnings of proposals (including alternatives), negotiate with agencies, and challenge final rules. We also advise and assist during the formulation of laws and development of scientific guidance that drives regulations. We help companies understand final rules and put effective compliance strategies in place. We evaluate how the regulatory process can be used to help manage litigation risk. We also vigorously defend against federal, state, and citizen enforcement actions.
• Compliance counseling. We advise clients throughout the supply chain—from manufacturers to distributors to retailers—on compliance obligations under various state PFAS-related reporting laws, disclosure requirements, labeling, and sales prohibitions. We help clients track the patchwork of emerging state regulations and effectively communicate with suppliers and customers to obtain information needed to comply with state laws, as well as seek appropriate assurances and indemnification.
• Transactional due diligence. We work with our clients to conduct due diligence, develop contractual provisions, and identify other risk mitigation strategies to assess and allocate PFAS concerns and potential liabilities in corporate, real estate, and other business transactions. The rapidly evolving landscape of federal and state regulations emphasizes that PFAS chemicals present multiple lines of business and financial risks arising from compliance considerations, site cleanup obligations, and litigation. Our substantive PFAS experience allows us to thoroughly analyze potential PFAS implications and risks in transactions and develop creative approaches to address environmental concerns and allow deals to move forward.
• Pre-litigation and litigation advice and counsel. We work with you to identify your exposure and develop a comprehensive cost-effective plan to address PFAS litigation. Our team of 400 litigators is engaged by clients across a broad range of matters—from providing advice and counsel about business disputes and torts to civil litigation, trial, and appeal, when necessary. We often represent clients in “bet-the-company” cases, complex commercial disputes, multidistrict litigation, and coordinated state law proceedings, as well as class actions. Our lawyers have the experience to handle cases that involve multiple adversaries in federal and state courts across the nation and abroad.
• Toxic tort, environmental and product liability, personal injury, property damage, and public nuisance litigation. We defend PFAS cases brought by public and private plaintiffs involving toxic tort claims, environmental liability, product liability, property damage, and public nuisance, among others. Our toxic tort litigators are nationally recognized with a history of representations in all 50 states and international jurisdictions, including in significant toxic tort, cleanup, and environmental class action matters. We regularly track trends and decisions in PFAS litigation to assess any associated impact or risk to our clients and cases. Outside the PFAS realm, we have relevant experience defending claims involving allegations of cancer, neurologic harm, and other long-latency diseases. We have handled cases involving air, water, soil, and fire/explosion-related exposures and mass evacuations in which all facets of regulatory compliance, public relations, and litigation are intertwined.
• Environmental enforcement and litigation defense. Our lawyers handle a wide array of actions across venues, including state and federal enforcement actions and citizen suits seeking significant civil penalties, actions for emergency or injunctive relief, demands for information, site investigations, site clean-up actions, and more. These matters include state and federal trial court proceedings, appeals in federal and state courts, and administrative agency proceedings, including matters before EPA’s Environmental Appeals Board.