We previously reported on various Georgia PFAS lawsuits that allege drinking water pollution from the carpet manufacturing industry based in Dalton, Georgia (the “carpet capital of the world”). As we reported, the lawsuits named numerous downstream users of PFAS as responsible entities in the litigation, and we predicted that the lawsuits and some of the court rulings will have enormous impacts on the future of the PFAS litigation, as it presents the possibility that the PFAS chemical manufacturers (who have thus far born the brunt of legal liability for PFAS environmental pollution claims) may in some instances be off the hook, with downstream companies and water utilities left with legal liability.

Recently, one of the named downstream companies involved in the litigation agreed to settle the claims against it, reinforcing the notions that downstream commerce users of PFAS are susceptible to involvement in PFAS litigation and that companies with any current or legacy use of PFAS must conduct full risk assessment and risk management protocols to fully understand the scope of risk.

PFAS In The Carpet Capital Of The World

Dalton, Georgia sits in the northern region of the state and since the 1990s, the area has produced almost 90% of the world’s carpet. The carpet industry utilizes PFAS in many carpet applications, in particular to make carpets that are stain resistant. The waste from the carpet manufacturing facilities was historically sent by way of effluent to Dalton Utilities, which ultimately feeds into the Conasauga River, about an hour and a half north of Atlanta. The Conasauga River flows south and supplies water to numerous waterways, including the Oostanaula River, which runs through the city of Rome. Rome once used up to ten million gallons of water a day from the Oostanaula, but it stopped using the river as its main drinking water source in 2016 due to PFAS concerns.

Georgia PFAS Lawsuits

In 2019, a class action lawsuit was filed in Georgia state court (the lawsuit was later removed to federal court) by citizens that obtain their drinking water from Rome, including adjacent cities that purchase drinking water from Rome. The lawsuit is styled as Jarrod Johnson v. 3M, et al., 19-CV-02448JFL003. In the lawsuit, the citizens allege that carpet manufacturers and chemical suppliers (e.g. – 3M, DuPont, etc.) contaminated their drinking water with PFAS and caused the following damages: (1) pollution of drinking water constituting a nuisance, (2) increased costs for drinking water that municipalities passed on to consumers due to the necessity of installing PFAS filtration technology, (3) remediation costs to cleanup PFAS from the drinking water supplies, and (4) an injunction request to force the named defendants from any further PFAS discharge into the water supplies.

Twelve Motions to Dismiss were filed on numerous legal grounds, which were all ruled on by the federal court i 2021.  Most of the nuisance and Clean Water Act claims were allowed to move forward. However, the Court also dismissed several claims against “chemical suppliers”, such as 3M and DuPont, ruling that they could not have foreseen the pollution issues in question, as they did not directly pollute the riverways and drinking water sources in question.

Downstream Company Settlement

IMAAC Corp. is an industrial plastic recycling facility in Georgia that was named in the Georgia PFAS lawsuits. This summer, the company agreed to a $35,000 settlement of all claims against it – $10,000 of which went to fund water quality improvements with $25,000 going towards plaintiffs’ legal fees. In addition, IMAAC agreed to change its practices for wastewater in that it will cease discharging its industrial wastewater into local riverways (which it was permitted to do by way of a user permit) and will send all of its wastewater to an independent waste handler.

The focus of the lawsuits remains on the carpet industry companies named in the cases, so any settlements from the carpet companies may be significantly higher than IMAAC’s.

Conclusion

It is of the utmost importance that businesses along the whole supply chain evaluate their PFAS risk. Public health and environmental groups urge legislators to regulate these compounds at an ever-increasing pace. Similarly, state level EPA enforcement action is increasing at a several-fold rate every year. Companies that did not manufacture PFAS, but merely utilized PFAS in their manufacturing processes, are therefore becoming targets of costly enforcement actions at rates that continue to multiply year over year. Lawsuits are also filed monthly by citizens or municipalities against companies that are increasingly not PFAS chemical manufacturers.

Conducting regular self-audits for possible exposure to PFAS risk and potential regulatory violations can result in long term savings for companies and should be commonplace in their own risk assessment.