James Russell Lowell wrote that one thorn of experience is worth a whole wilderness of warning. This week's nearly 400 million dollar settlement between a New Jersey plastic manufacturer and the State of New Jersey over the manufacturer's PFAS liability is most certainly proof of that proposition.
Among other things, the manufacturer is required to remove PFAS from soil and groundwater in the vicinity of its New Jersey facility, pay for treatment upgrades by the local public water system, address PFAS in private water supplies in the vicinity of the facility, and pay Natural Resources Damages.
The manufacturer has also agreed to meet not only the current New Jersey PFAS standards but any more stringent standards selected by EPA or the State in the future.
Since several States, including New Jersey, and then EPA, determined that concentrations of PFAS in parts per quadrillion were a serious human health concern, there's been more than sufficient cause for worrying about potentially crushing PFAS liability attaching to anyone who has had anything to do with the "forever chemicals" in the 75 years or so that they have been used in everything from cookware to clothing to packaging.
But this summer the PFAS liability chickens are coming home to roost in earnest.
The Commissioner of the New Jersey Department of Environmental Protections says that this settlement is a "warning signal." He has my attention. He should have your attention too if you're considering investing in one of the thousands of ventures that have used PFAS, or even worse released them to the environment.
Owing to EPA's new Toxics Release Inventory requirements for PFAS under the Community Right to Know Law, soon we'll all know the identities of those ventures still using PFAS. We can be sure that regulators, and plaintiffs' lawyers, will be paying attention to those filings.
Even though EPA and State regulators have determined that PFAS are an urgent public health and environmental issue, and the first rule of holes is to stop digging, some industries just can't quit PFAS. For that reason, the State of Maine just delayed for two years certain PFAS requirements that were to have been effective last January. And US Senate Majority Whip Dick Durbin has implored the United States Department of Commerce to invest in determining alternatives to the use of PFAS in the semiconductor industry and others because "there are not currently any viable replacements for their function."
Those companies legally responsible for releases of PFAS to the environment that have occurred or are occurring can do little more than wait to see if they can bear the weight of their liability. For some, the weight will be too much. If they weren't already paying attention to this possibility, the New Jersey PFAS settlement thorn should cause savvy investors to consider the potential PFAS liability of the countless companies facing this liability.
New Jersey officials are pressing potentially responsible parties (PRPs) to quickly settle any potential PFAS contamination claims for which they may be liable as they announced a landmark $393 million settlement with chemical manufacturer Solvay Specialty Polymers USA -- the largest single site agreement in the state’s history and one that officials say shows their national leadership on the issue. “This [settlement with Solvay] is by all accounts, a warning signal,” New Jersey’s Department of Environmental Protection (DEP) Commissioner Shawn LaTourette emphasized during a June 28 press conference announcing the landmark deal to clean up per- and polyfluoroalkyl substances (PFAS) and address any natural resource damages (NRD). “If you have PFAS obligations, because you have polluted New Jersey, it is time to get to the table and face the communities that now have to grapple with this harm,” he added.