Don’t Forget to Floss
Orell Anderson, MAI, FRICS, ASA
Real Estate Litigation Consultant, Forensic Appraiser, Expert Witness, Property Value Diminution
By Orell Anderson
Like many, I’ve unknowingly been eating, painting, skiing, playing ball, and using fluorinated substances—from my mom’s cooking or dad’s art paints, and ski wax to blue suede sneakers and even my dentist’s highly recommended dental floss. And—say it ain’t true—Who Gives a Crap Bamboo Toilet Paper (1)!
So, another article on PFAS might not seem interesting. Or maybe it is?
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In "Navigating PFAS Risk and its Persistent Impact on Emerging Laws and Liability" (2024), attorneys Adam Sanders and Ryan Freeman deliver an in-depth analysis of the evolving legal and regulatory landscape surrounding PFAS (2). These chemicals have become a critical issue due to their widespread use in consumer products and their alarming environmental and public health impacts. The authors trace the history of PFAS, from their development by 3M and DuPont in the mid-20th century to their current notoriety as a public health concern.
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The article delves into the growing awareness of PFAS contamination, particularly in drinking water, and the legal actions that followed, such as the class-action lawsuits against DuPont in West Virginia and the multidistrict litigation (MDL) concerning Aqueous Film-Forming Foam (AFFF). The authors highlight how litigation, regulatory actions, and scientific research have shaped today’s legal landscape, culminating in significant settlements and new regulatory proposals like the U.S. EPA's establishment of maximum contaminant levels (MCLs) for six PFAS compounds in drinking water.
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The treatise underscores the complex legal and financial challenges facing water utilities and industries that "passively" receive or handle PFAS. The EPA's recent designation of certain PFAS as hazardous substances under CERCLA has sparked concerns about potential liabilities for these entities. Although the EPA aims to target manufacturers and major polluters, the lack of legislative exemptions leaves many utilities vulnerable to costly litigation and cleanup obligations.
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Furthermore, the piece discusses the broader regulatory landscape, noting that various state-level PFAS regulations create a fragmented compliance framework for industries nationwide. The write-up emphasizes the ongoing nature of PFAS-related litigation and the critical role attorneys will play in helping clients navigate regulatory compliance, manage risk, and prepare for potential lawsuits.
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Unlike bamboo loo rolls, Sanders and Freeman’s comprehensive overview sheds light on the lasting impact of PFAS on environmental law and policy. It also highlights the importance of infrastructure industries proactively addressing the evolving regulatory and liability frameworks surrounding these “forever chemicals.”
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References:
(2) American Bar Association; Infrastructure; Spring 2024; Vol. 63 No. 3? Navigating PFAS Risk and its Persistent Impact on Emerging Laws and Liability (americanbar.org)