On January 31, 2023, Illinois became the latest state to file a PFAS pollution lawsuit against manufacturers of PFAS seeking damages for alleged contamination in the state; however, the lawsuit notably explicitly disclaims any issues related to aqueous film-forming foam (AFFF) in the Complaint. The lawsuit pertains to several community water services in the state, representing pollution claims spanning several populous counties in Illinois. The Illinois PFAS lawsuit will be closely watched by 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.

Illinois PFAS Lawsuit

The Illinois PFAS lawsuit targets PFAS manufacturers, although the Complaint disclaims any allegations related to AFFF pollution. Rather, the lawsuit discusses PFAS pollution more broadly as it relates to drinking water sources. The purpose for such a direct exclusion is to avoid having the case automatically transferred to the AFFF MDL in South Carolina – home to over 3,000 cases at this point, all involving allegations related to AFFF. By disclaiming any issues related to AFFF, though, Illinois is hoping to have the case stay within the state court system, thereby allowing the case to proceed much more quickly than it would on the MDL. This is not a new tactic by states seeking to bring lawsuits for alleged widespread PFAS contamination, although the results of such efforts have been mixed. New Hampshire, for example, successfully defeated efforts to transfer a case to the MDL, while New Mexico was not successful in similar efforts.

The Illinois lawsuit details the state’s efforts to determine the scope of PFAS contamination issues, which included testing of over 1,400 entry points into the systems of over 1,700 community water supplies in the state. The state tested for 18 types of PFAS at the entry points and found PFAS levels equal to or greater than Illinois’ Health Advisories at 70 of the entry points. The Complaint details some of the findings at in specific community water supplies, which are in Cook County, Grundy County, and Lake County.

The case brings legal claims for negligence, trespass, public nuisance, strict products liability, failure to warn, design defect, civil conspiracy, in addition to a variety of claims related to consumer fraud.  The damages sought by the Attorney General include costs associated with the state’s past, present and future efforts to tackle PFAS 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.

Implications For Downstream Manufacturers

While the Illinois PFAS lawsuit targets PFAS manufacturers, companies should not dismiss the lawsuit as an event unlikely to impact them in any way. On the contrary, in other states, including California, 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.