On April 7, 2021, Alaska’s Attorney general filed a lawsuit against over thirty companies seeking damages for PFAS pollution to the environment throughout the state. While the Complaint seeks damages from pollution related to only two of the thousands of PFAS – in this case, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) – the damages alleged are nevertheless likely to be in the hundreds of millions for remediation. The Alaska PFAS lawsuit will be closely watched by both states who are contemplating suing for PFAS remediation and companies who either manufactured PFAS or utilized PFAS as part of their manufacturing process. While the lawsuit targets a narrowly tailored set of companies, lawsuits in other states have already demonstrated that downstream commerce corporations are at risk of being involved in lawsuits seeking hundreds of millions of dollars.
What Are PFAS and Why Are They a Concern?
Per- and poly-fluoroalkyl substances (“PFAS”) are a class of over 7,000 manmade compounds. Chemists at 3M and Dupont developed the initial PFAS chemicals by accident in the 1930s when researching carbon-based chemical reactions. During one such experiment, an unusual coating remained in the testing chamber, which upon further testing was completely resistant to any methods designed to break apart the atoms within the chemical. The material also had the incredible ability to repel oil and water. Dupont later called this substance PFOA (perfluorooctanoic acid), the first PFAS ever invented. After World War II, Dupont commercialized PFOA into the revolutionary product that the company branded “Teflon.”
Only a short while later, 3M invented its own PFAS chemical – perfluorooctane sulfonate (PFOS), which they also commercialized and branded “Scotchgard.” Within a short period of time, various PFAS chemicals were used in hundreds of products – today, it numbers in the thousands.
The same physical characteristics that make PFAS useful in a plethora of commercial applications, though, also make them highly persistent and mobile in the environment and the human body – hence the nickname, “forever chemicals.” While the science is still developing regarding the extent of possible effects on human health, initial research has shown that PFOA and PFOS are capable of causing certain types of cancer, liver and kidney issues, immunological problems, and reproductive and developmental harm.
Alaska’s PFAS Lawsuit
The lawsuit targets three distinct groups of companies – (1) PFAS manufacturers; (2) PFAS distributors and (3) aqueous film forming foam (AFFF) manufacturers and suppliers. Several theories of liability are asserted, including negligence, nuisance, trespass, and products liability. The damages sought by the Attorney General include costs associated with the state’s past, present and future efforts to tackle PFOA and PFOS environmental pollution. The future costs would include investigative costs to determine the full scope of the pollution, remediation costs, proper disposal of PFAS-contaminated water and solids, and monitoring for future pollution. Significantly, Alaska seeks triple damages under its state statutes, as well as punitive damages to punish the alleged bad behavior on the part of the corporations. While the remediation costs alone could be in the hundreds of millions, if Alaska were to prevail on either the punitive damages or triple damages claims, the cost to resolve the matter for the defendants could top one billion dollars.
Implications For Downstream Manufacturers
While the Alaska PFAS lawsuit targets PFAS manufacturers and AFFF manufacturers, companies should not dismiss the lawsuit as an event unlikely to impact them in any way. On the contrary, in other states, companies have been directly named as defendants in lawsuits seeking billions of dollars in PFAS remediation costs. Corporations should not ignore the pollution and environmental contamination issues that PFAS pose, as states, federal and state regulatory agencies, and even private citizens are actively seeking damages from companies that they believe placed PFAS into the environment. All companies of all types would be well advised to conduct a complete compliance audit to best understand areas of concern for PFAS liability issues, and ways to mitigate PFAS concerns.